NEW  SERIES  NO.  39  APRIL  6, 19fa 

BULLETIN  OF  THE  STATE 

UNIVERSITY  OF  IOWA 


Studies  in  Sociology,  Economics 
Politics  and  History 


VOLUME  IV  NUMBER  1 


THE^DEVELOPMENT  OF  BELLIGERENT 
OCCUPATION 

BY 


JACOB    ELON  CONNER 


PUBLISHED    BY    THE    UNIVERSITY 


ISSUED  TWENTY-ONE  TIMES  DURING  THE  ACADEMIC  YEAR;  MONTHLY  FROM 

OCTOBER  TO  JANUARY.  WEEKLY  FROM  FEBRUARY  TO  JUNE.    ENTERED 

AT  THE  POST  OFFICE  AT  IOWA  CITY  AS  SECOND  CLASS  MAIL  MATTER 


IN  THE  SERIES  OF  RESEARCH  BULLETINS  OF  THE  UNIVERSITY 


STUDIES 


ijsr 


Sociology,  Economics,  Politics 
and  History 


PROFESSOR  ISAAC  ALTHAUS  LOOS,  LL.  D., 

EDITOR 


THE  DEVELOPMENT  OF  BELLIGERENT 
OCCUPATION  / 


JACOB  ELON  CONNER 


sL  ijti^ 


TO 

THE  MEMORY  OF 
MY  FATHER  AND  MOTHER 
THIS  WORK  IS  DEDICATED 


THE   DEVELOPMENT   OF   BELLIGERENT 
OCCUPATION 

B Y  Jacob  E  LON  Co N N E R 


INTRODUCTION  ■  ? 

The  subject  which  is  herein  treated  under  the  title  of  "Bellig-' 
erent  Occupation,"  might  be  roughly  defined  as  that  stage  of 
military  operations  which  is  instituted  by  an  invading  force  in 
any  part  of  an  enemy's  territory  when  it  has  overcome  all  suc- 
cessful resistance  and  established  its  own  military  authority 
over  said  territory  and  the  non-combatant  population,  in  lieu  of 
pre-existing  civil  authority.  As  a  stage  of  military  operations 
it  must  come  to  an  end  with  the  treaty  of  peace,  though  military 
occupation  may  continue  for  some  time  thereafter. 

This  fact  leads  to  a  discussion  of  terms.  For  the  stage  of 
military  operations  just  mentioned,  the  terms  "military  occupa- 
tion," "belligerent  occupation,"  "hostile  occupation,"  or  follow- 
ing the  French  usage,  simply  "occupation,"  have  been  indis- 
criminately employed.  During  the  last  few  years  we  have  heard 
much  of  the  military  occupation  of  Cuba,  Porto  Rico,  and  the 
Philippines  by  the  United  States,  and  of  China  by  the  united 
powers.  Yet  each  case  represents  a  different  phase  of  occupation." 
Speaking  more  precisely  only  the  last  mentioned  is  a  case  in 
point  throughout,  such  as  is  contemplated  in  our  subject,  though 
the  other  cases  are  analogous  up  to  the  signing  of  the  treaty  of 
peace  with  Spain. 

.  The  treaty  of  peace,  as  the  final  word  upon  the  issues  of  the 
conflict,  determines  the  permanent  status  of  occupied  territory. 
Military  occupation  thereafter  is  of  an  essentially  different  nature 
from  what  it  was  before,  and  is  to  be  determined  with  all  pru- 
dent expedition.  Being  of  such  a  different  nature  it  would  seem 
to  be  opportune  in  the  present  treatise  to  offer  a  corresponding 
(distinction  in  the  use  of  terms,  trusting  that  it  is  not  anticipating 
usage  presumptuously.  Accordingly,  the  term  "military  occu- 
pation" when  employed  herein,  will  coincide  with  what  is  believed 


4  Belligerent  Occupation 

to  be  popular  usage  in  designating  occupation  after  the  treaty 
of  peace,  whili  "belligerent  occupation"  is  reserved  for  occupa- 
tion during  th6  conflict.  The  term ' 'hostile  occupation' '  is  rejected 
for  the  reasdh  that  non-combatant  people  and  territory  should 
not  be  conceived  of  as  hostile  though  still  technically  belligerent. 
The  French  term  "occupation"  is  rejected  because  of  liability  to 
confusion  With  the  concept  represented  by  the  Roman  occupatio. 

It  might  be  said  in  further  justification  of  this  discrimination 
that  some  such  distinction  is  made  necessary  to  fit  a  situation 
so  fundamental  to  a  consideration  of  the  subject  as  a  part  of 
international  law,  where  it  naturally  belongs;  for  with  the  con- 
clusion of  peace,  military  occupation  becomes  at  once  a  national 
rather  than  an  international  affair.  With  the  period  preceding 
pe;ace,  therefore,  since  wars  may  be  international,  international 
law  is  much  concerned,  whether  the  occupation  be  considered 
as  law  or  as  comity.  Hence,  if  military  occupation  be  chosen 
to  designate  the  later  period  it  can  not  in  International  Law  be 
consistently  applied  to  the  earlier,  and  thus  for  the  reasons  above 
given,  the  term  "belligerent  occupation"  will  be  employed  to 
designate  a  set  of  relations  which  partake  of  an  international 
character  to  a  greater  degree  than  does  "military  occupation." 

Belligerent  occupation,  as  the  term  has  just  been  defined,  is 
to  be  considered  down  to  1863  from  the  point  of  approach  rep- 
resented in  its  historical  development.  It  was  in  this  year  that 
Dr.  Francis  Lieber,  at  the  request  of  President  Lincoln,  formu- 
lated the  first  modem  manual  of  instructions  to  army  officers 
respecting  their  duties  to  a  conquered  territory  and  people. 
Since  this  celebrated  manual  led  to  the  issuance  by  other  states 
of  similar  manuals  for  their  respective  armies,  it  is  evident  that 
the  comparative  or  analytic  method  of  approach  to  the  subject 
is  more  suitable  to  the  modem  phase  of  its  development. 

The  year  1863,  therefore,  although  but  a  step  in  a  historical 
process,  is  by  far  the  most  important  step  in  that  process.  It 
may  not  be  called  the  beginning  of  belligerent  occupation,  for 
this  has  had  many  beginnings,  as  the  distinctions  between  com- 
batants and  non-combatants,  between  public  and  private  prop- 
erty, between  movable  and  immovable  property  in  their  legal 
status  as  affected  by  war,  etc.  Moreover,  at  least  one  manual 
can  be  pointed  out  which  had  been  in  existence  for  444  years 
when  President  Lincoln  took  the  initial  and  significant  step  which 


Primitive  Usa^e    «I  f6 

led  to  the  codification  of  the  rules  of  war  under  discussionj/u  This 
early  manual  is  known  as  the  War  Ordinances  of  Henry  •¥«>£ 
England.  Reserving  a  fuller  discussion  of  this  remarkable  #oiflc 
for  another  place,  it  need  only  be  stated  here  that  it  had  no  ith- 
mediate  and  positive  results,  so  far  as  observable,  upon  Inter- 
national Law,  whereas,  the  manual  of  1863  was  immediately 
followed  by  a  series  of  attempts  to  synthesize  their  results  into 
an  international  code.  Though  this  latter  has  not  yet  been 
accomplished,  except  so  far  as  brieifly  formulated  by  the  Hague 
Conference,  yet  the  influence  of  the  modem  manuals  is  permanent 
and  authoritative,  and  they  are  fairly  uniform. 

It  is  not  too  much  to  say,  therefore,  that  with  the  year  1863 
we  have  the  beginning  of  the  recognition  of  belligerent  occupa- 
tion as  a  definite  stage  in  military  operations;  that  before  this 
year  the  elements  of  belligerent  occupation  existed  merely  as 
the  disjecta  membra  of  a  now  well-established  and  fairly  organ- 
ized code;  that  it  is  not  until  1863  that  we  can  precisely  say  that 
we  have  such  a  thing  as  belligerent  occupation  in  a  legal  sense. 

PRIMITIVE  USAGE 

It  will  be  in  order,  therefore,  though  an  order  neither  strictly 
chronological  nor  topical,  to  consider  the  principal  elements  in 
the  development  of  belligerent  occupation.  These  principal  ele- 
ments may  be  stated  succinctly  as  follows:  ;  i 

1.  A  distinction  between  combatants,  or  those  who  bear  arms, 
and  non-combatants,  or  those  who  do  not.  is 

2.  A  distinction  in  the  treatment  of  public  and  private  ptioperty, 
especially  the  exemption  of  the  latter  from  the  severities  of  war. 

3.  A  distinction  in  the  treatment  accorded  to  movable  and 
immovable  property. 

4.  The  legal  status  of  territory  and  people  during  the  period 
of  occupation. 

It  is  evident  that  these  elements,  while  fundamental  to  otir 
subject,  have  a  much  wider  significance  in  relation  to  the  general 
progress  of  civilization.  War  is  a  reversion  to  the  argument  of 
barbarians.  In  so  far  as  it  becomes  unregulated,  ungovemed, 
it  is  a  recrudescence  of  the  parties  to  the  conflict,  a  national 
lapse,  whose  effects  are  longer  lived  than  the  conflict  itself.     Mod- 


^%  Belligerbnt  Occupation 

em  international  law,  reflecting  the  highest  moral  sentiments  of 
modem  states,  declares  peace  to  be  the  moral  condition  to  which 
belligerents  are  bound  to  return  as  soon  as  the  issues  of  the  strife 
have  been  decided.  This  is  in  strong  contrast  to  the  earliest 
usage  of  each  separate  tribe  or  people.  But  modem  nations  are 
imwilling  to  suffer  a  complete  relapse  to  barbaric  methods,  even 
to  accomplish  the  end  of  a  deadly  combat.  They  therefore  con- 
fine their  hostile  operations  to  the  instruments  of  warfare,  the 
amied  forces,  and  do  not  visit  upon  the  non-combatant  portion 
of  the  enemy  any  of  the  rigors  of  war  save  such  as  may  be  de- 
manded by  military  necessity.  The  primitive  concept  of  war 
permitted  every  person — man,  woman,  and  child — to  make  war 
upon  every  other  person  belonging  to  the  enemy.  The  modem 
concept,  on  the  contrary,  limits  hostilities  to  properly  authorized 
Agents,  who  should  be  distinguished  from  their  non-combatant 
ocwnpatriots  by  badges  or  uniforms,  by  military  organization, 
and  by  authority  to  do  all  possible  injury  to  the  like  forces  of 
the  enemy,  only  under  certain  conditions. 

It  will  thus  be  seen  that  the  constant  tendency  in  warfare  is 
toward  intensification;  the  fiercest  possible  treatment  of  the 
fighting  machinery  of  the  enemy,  whether  it  be  a  weapon  or  a 
man,  and  side  by  side  with  this  the  exemption  of  the  unarmed 
and  inoffensive  populace.  Thus  the  advance  of  civilization  may 
be  gauged — and  perhaps  most  accurately  gauged,  if  war  repre- 
sents the  minimum  of  advancement — ^by  the  widening  of  the  dif- 
ference in  treatment  accorded  to  combatants  and  non-combat- 
ants, between  the  execution  aimed  at  the  soldier  in  the  ranks 
and  the  protection  of  the  farmer  in  his  fields. 

As  to  the  second  and  third  characteristics,  the  distinction  be- 
tween movable  and  immovable  property,  and  between  public 
and  private  property,  these  will  be  explained  more  fully  in  their 
proper  historical  connection,  the  first  only  being  of  particular 
importance  in  connection  with  early  usage. 

It  would  be  difficult,  perhaps  impossible,  to  say  what  is  the 
first  recorded  instance  of  an  agreement  between  two  belligerents 
to  spare  non-combatants  on  either  side,  in  life  or  property.  One 
authority  1  says  that  "the  most  ancient  state  whose  records  have 
been  preserved  to  us  in  a  condition  of  fair  completeness  is  that 

»T.  A.  Walker,   Cambridge  University,    in  "A  History  of  the  Law  of 
Nations,"  p.  31  (1899). 


.Primitive  Usage  7 

of  the  Israelites."  And  we  know  that  the  practice  of  the  Israelites 
was  terribly  severe.  It  was  no  worse,  however,  than  that  of 
neighboring  tribes,  notwithstanding  the  occasional  voice  lifted 
in  protest  against  the  revolting  practices  which  were  tolerated. 
This,  indeed,  is  the  most  impressive  feature  of  the  subject  from 
earliest  times  to  modem;  namely  the  persistence  of  a  brutal  cus- 
tom long  after  its  reiterated  condemnation.  The  earliest  de- 
parture from  the  prevailing  custom  of  pitiless  slaughter  and 
devastation  after  a  victory  was  dictated,  no  doubt,  by  expediency 
rather  than  by  mercy.  It  must  have  been  recognized  from  the 
beginning  of  organized  warfare  that  pillage  and  excessive  cruelty 
are  disorganizing  and  destructive  of  military  discipline;  that 
wanton  devastation  exhausts  the  land  from  which  both  belliger- 
ents derive  their  support  and  that  there  is  more  profit  in  selling 
a  man  into  slavery  than  in  taking  hi?  life.  Such  considerations 
as  these,  and  not  mercy,  are  at  the  bottom  of  the  Mosaic  command 
to  spare  all  the  fruit  trees  in  the  neighborhood  of  a  besieged  city.^ 

Numerous  instances  may  be  cited  in  the  warfare  of  the  Israelites 
where  clemency  was  shown  to  prisoners,  to  the  wounded,  to 
women  and  children,  and  where  subject  tribes  were  released  from 
the  sternest  treatment  by  promise  of  ransom  or  tribute.  This, 
indeed,  may  be  said  of  other  ancient  nations;  but  recorded  in- 
stances of  a  stipulated  exemption  from  the  hardships  of  war 
accorded  by  combatants  to  non-combatants  in  the  presence  of 
actual  hostilities  are  almost  unknown. 

One  such  instance^  is  recorded  by  Xenophon  in  his  Cyropaedia. 
It  is  the  earliest  that  the  writer  has  been  able  to  find,  and  is  of 
sufficient  importance  to  deserve  extended  notice. 

"Cyrus  having  taken  into  consideration  those  who 
had  revolted  to  him,  and  who,  being  in  the  neighborhood 
of  Babylon,  would  suffer  severely  unless  he  himself  were 
always  at  hand  to  protect  them,  desired  all  of  the  enemy 
whom  he  dismissed  to  tell  the  Assyrian  king,  and  he  him- 
self sent  a  herald  to  him  with  a  message  to  the  same 
effect,  that  he  was  ready  to  let  the  laborers  employed  in 
the  culture  of  the  lands  alone,  and  to  do  them  no  injury, 


'"It  would  not  be  too  much  to  say,"  says  Walker,  "that  herein  we  see 
the  beginning  of  a  definite  law  of  War" — which  is  attributing  rather  large 
importance  to  it,  in  the  opinion  of  the  writer.  (See  Walker  "A  History  of 
the  Law  of  Nations",  p.  36). 

*  Cyropaedia,  V,  4,  24.  The  colloquial  form  is  a  favorite  method  of  nar- 
ration with  Xenophon  as  with  other  classic  writers. 


8  Beliigerent  OccuPATio:>r 

if  he,  on'^the  other  hand,  would  allow  the  laborers  of  such  ,  •.  ^ 
as  had  revolted  to  himself  to  pursue  their  work:  'Though     y 
indeed,'  he  added,  'if  you  are  able  to  hinder  them  you 
will  hinder  but  a  few,  for  the  land  belonging  to  those 
who  have  revolted  to  me  is  but  little;  while  I,  on  the 
other  hand,  would  allow  a  large  portion  of  the  land  to 
be  cultivated  for  you.     And  as  to  the  gathering  of  the       > 
crop,  if  the  war  continues,  he  that  is  strongest,  I  suppose,    . 
must  needs  gather  it;  but  if  there  be  peace,  it  is  plain 
that  you  must  gather  it.     Be  that  as  it  may',  he  said,  'if 
any  of  my  people  take  up  arms  against  you,  or  any  of 
yours  against  me,  we  must  punish  such  persons  to  the 
best  of  our  ability.' 

When  the  Assyrians  heard  of  this  proposal,  they  did  . 
all  they  could  to  persuade  the  king  to  comply  with  it 
and  to  leave  as  little  war  remaining  as  possible.     The 
Assyrian  monarch  accordingly,  whether  from  being  per-    -•  - 
suaded  by  his  people,  or  from  his  own  inclination,  con-  :  -"^ 
sented;  and  an  agreement  was  made  that  there  should  be 
peace  to  those  that  were  employed  in  labor,  and  war  to     '.. . 
those  that  should  bear  arms.     Such  an  agreement   did  - 
Cyrus  make  with  respect  to  the  laboring  people ;  but  the 
pastures  of  the  cattle  he  ordered  his  friends  to  make  use      ^ 
of  as-they  saw  fit,  each  within  his  own  jurisdiction. 
Moreover  they  carried  off  booty  from  the  enemy  wher- 
ever they  could,  in  order  that  the  allies  might  be  better 
pleased  with  the  service.     For  aside  from  taking  the  sup- 
plies the  hardships  were  the  same,  and  the  booty  of  the 
enemy  seemed  to  make  the  service  lighter."^ 

Let  us  look  more  narrowly  at  this  ancient  treaty,  for  it  antici- 
pates the  modem  manuals  by  upwards  of  two  thousand  fotir  hun- 
dred years  upon  several  important  points.     It  is  to  be  noticed: 

First,  that  the  war  is  not  to  be  universal;  it  was  agreed  that 
"there  should  be  peace  to  those  who  were  employed  in  labor  and 
war  to  those  that  should  bear  arms."  Is  not  this  the  greatest 
step  ever  taken  in  the  progress  from  barbarism  to  civilization? 
It  involves  the  limitation  of  war,  as  far  as  may  be,  to  the 
agents  and  agencies  of  warfare,  exempting  the  unarmed  and  help- 
less, and  allowing  the  continuance  of  peaceful  pursuits.  In  a  word, 
it  makes  war  a  contest  between  states — a  political  struggle- — and 
not  between  peoples — a  racial  struggle,  or  homicidal  warfare. 

Td?  f^e^TOl  vojid?  xcov  xtt]V(ov  zovq  \ikv  iavxoxi  cpiXovq  exeXeuoe  xata- 
fteoOm,  el  PovXoivxo,  ev  xfj  Iovtcov  eaixQaxeia'  xtjv  6e  xiBv  noXefiicov 
Xeiav  I'lYOV  onodev  Suvaivxo,  o:i<og  etrj  ■{]  axQuxeia  i')8uov  xotq  av\k\t.d- 
Xoi?,  oi  fiEV  ydp  xivSvvoi  ol  auxol  xai  avcu  xou  XauPdveiv  xdn,t criSeia, 
^  6*  i%  x&v  noXefiioiv  xQoqpT]  xouqpoxeQav  xtjv  aiQaxeiav  eSoxei  aaQix^^'V' 


Primitive  Usage  9 

•  Second,:  the  motives  for  proposing  the  agreement  were  a  desire 
to  spare  his  own  allies  and  a  willingness  to  make  reciprocal  con- 
cessions to  that  end.  It  cannot  be  shown  that  Cyrus  took  higher 
ground  than  this,  though  from  the  general  character  of  his  cam- 
paigns it  would  not  be  too  much  to  expect  such  clemency  to  the 
non-combatant  enemy,  even  without  the  like  favor  in  return. 
The  same  may  be  inferred  likewise  from  the  fact  that  the  con- 
cession which  he  makes  is  much  larger  than  the  one  which  he  an- 
ticipates in  return.  Cyrus  never  approved  of  wanton  destruc- 
tion, either  of  life  or  of  property,  and  in  permitting  his  soldiers 
to  plunder  as  he  frequently,  perhaps  usually  did,  he  yielded  so 
far  to  the  universal  custom  which  permitted  much  greater  ex- 
cesses. And  this  was  done  too  in  the  interests  of  discipline;  for 
although  "he  knew  well",  as  Xenophon  testifies  in  another  place, 
"that  in  plundering,  cowards  are  apt  to  be  foremost,"  yet  there 
would  have  been  danger  of  mutiny  had  he  attempted  a  complete 
suppression  of  plundering. 

Third,  it  is  to  be  noticed  that  this  agreement  is  to  be  enforced 
by  both  commanders  for  their  mutual  advantage.  A  non-com- 
batant enemy,  because  of  his  supposed  inoffensive  character,  has 
much  more  opportunity  for  mischief  than  has  his  compatriot  who 
is  under  arms.  One  who  violates  a  privilege  granted  by  an  enemy 
need  not  expect  less  than  the  extreme  penalty  if  he  falls  into  the 
enemy's  hands. 

Fourth,  nothing  is  said  as  to  the  disposition  to  be  made  of 
the  non-combatants  at  the  close  of  the  war,  nor  of  the  lands  they 
cultivated,  except  that  it  is  darkly  hinted  that  he  who  is  the 
strongest  in  arms  shall  gather  the  crops.  Plainly  no  jural  rights 
had  as  yet  been  dreamed  of  which  would  secure  to  these  laborers 
the  proprietorship  of  their  land  in  case  of  a  change  of  sovereignty 
and  we  know  from  contemporary  usage,  even  till  much  later  times, 
that  they  might  have  reason  to  expect  massacre,  slavery,  or  at  the 
very  best,  exemption  from  these  by  a  heavy  annual  tribute  to  the 
conqueror. 

Fifth,  the  agreement  did  not  wholly  include  private  property. 
How  far  this  was  in  obedience  to  "military  necessity",  which  even 
today  will  justify  a  commander  in  making  "requisitions"  or  levy- 
ing "contributions"  it  is  impossible  to  say.  An  appropriate  term- 
inology had  not  yet  been  invented,  such  as  would  have  enabled 
the  narrator  to  make  such  distinctions.     It  is  left  indefinite,  too, 


10  Belligerent  Occupation 

as  to  whether  each  is  to  punish  his  non-combatant  enemies  or 
those  of  his  own  side,  though  presumably  it  is  the  former;  in  which 
case  the  punishment  would  be  extreme,  even  as  it  is  today. 

Taking  it  altogether  this  is  a  most  remarkable  exhibition  of 
clemency,  as  well  as  good  military  judgment,  and  the  humanity 
of  Cyrus,  as  herein  revealed  stands  out  in  striking  relief  against 
the  dark  background  of  contemporary  custom.  It  is  not  to  be 
supposed  that  such  exemption  would  have  been  granted  to  his 
non-combatant  enemy  had  it  not  been  for  the  wish  to  save  his 
allies.  But  we  find  few  commanders  in  ancient  times  who  could 
see  the  inexpediency  of  wanton  destruction. 

If  anjrthing  were  needed  to  confirm  his  reputation  for  clemency, 
it  is  to  be  found  in  connection  with  the  storming  and  capture  of 
Sardes,  the  capital  of  Lydia.  Such  occasions  have  always  been 
the  scenes  of  the  most  reckless  ferocity,  and  even  down  to  the  middle 
of  the  nineteenth  century  it  was  a  matter  of  debate  among  pub- 
licists in  international  law  whether  the  defenders  of  a  gar- 
rison or  besieged  city  might  be  treated  with  more  severity  than 
opponents  in  the  open  field.  The  wellnigh  universal  practice  has 
been  to  show  little  or  no  mercy,  and  the  more  stubborn  the  resist- 
ance the  greater  the  severity.  The  custom  of  the  Romans  was 
to  give  no  quarter  after  the  head  of  the  battering-ram  had  once 
touched  the  walls  of  the  besieged.  But  we  find  in  the  instance 
cited*  that  Cyrus  not  only  spared  the  lives  of  the  besieged  but 
prevented  the  sack  of  the  city^  only  desiring  of  the  Lydian  king 
a  ransom  sufficient  to  satisfy  his  soldiers. 

These  two  instances  of  the  magnanimous  treatment  of  a  fallen 
foe  even  after  making  sufficient  allowance  for  the  personal  equation 
of  the  narrator,  show  plainly  enough  that  though  the  magnanimity 
was  not  usually  practiced  under  such  circumstances  it  was  not  due 
to  lack  of  knowledge  thereof  at  such  an  early  time,  but  the  disin- 
clination to  be  influenced  by  it.  Over  and  over  again  one  is  led 
to  believe  that  in  the  midst  of  the  sternest,  the  most  revolting 

'Cyropaedia  VII,  2,  11  and  12.  "Hear  then,  Croesus,"  said  he, 
"knowing  that  the  soldiers  after  having  undergone  many  fatigues  and  in- 
curred many  dangers,  consider  themselves  now  in  possession  of  the  richest 
city  in  Asia,  next  to  Babylon.  I  think  it  fit  that  they  should  receive  some 
recompense;  for  I  am  sure,"  continued  he,  "that  unless  they  receive  some 
fruit  of  their  labors  I  shall  not  have  them  long  obedient  to  my  orders.  I  am 
not,  however,  willing  to  give  the  city  up  to  their  plunder;  for  I  believe  that 
it  would  thus  be  destroyed;  and  in  plundering  I  know  very  well  that  the 
worst  men  would  have  the  advantage."  Needless  to  say  that  to  this  the 
joyful  Croesus  assented. 


Primitive  Usage  11 

cruelties  of  ancient  warfare,  men  knew  better,  but  custom  governed. 
It  governed  to  such  a  degree  that  the  agreement  between  Cyrus 
and  the  Babylonian  king  is  unique.  Other  laws  of  war  may  be 
discovered  in  the  making,  but  with  these  we  are  not  concerned. 
Other  instances  of  customary  or  stipulated  limitation  of  hostilities 
to  combatants  is  the  point  that  directly  concerns  us,  and  for  this 
we  may  search  in  vain.  So  far  from  exempting  non-combatants 
from  the  evils  of  war,  war  itself  was  defended  for  the  very  reason 
that  it  afforded  a  means  of  procuring  slaves;  and  this,  too,  by  no 
other  than  Aristotle.  Polybius^  (about  200  B.  C.)  condemns 
treachery  and  needless  cruelty  and  destruction: 

"The  taking  and  demolishing  an  enemy's  forts,  har- 
bors, cities,  men,  ships  and  crops  and  such  other  things 
by  which  our  enemy  is  weakened  and  our  own  interests 
and  tactics  supported,  are  necessary  acts  according  to 
the  laws  and  rights  of  war."  But,  "to  deface  temples, 
statues  and  such  like  erections,  in  pure  wantonness  and 
without  any  prospect  of  strengthening  one's  self  or  weak- 
ening the  enemy  must  be  regarded  as  an  act  of  blind  pas- 
sion or  insanity.  For  the  purpose  with  which  good  men 
wage  war  is  not  the  destruction  and  annihilation  of  the 
wrongdoers,  but  the  reformation  and  alteration  of  the 
wrongful  acts.  Nor  is  it  their  object  to  involve  the  in- 
nocent in  the  destruction  of  the  guilty,"  etc. 

Accordingly  Polybius  points  out  that  Philip  of  Macedon  won  his 
victory  over  the  Athenians  not  so  much  by  the  battle  of  Chaeronea 
as  by  his  justice  and  humanity  thereafter; 

"His  victory  in  the  field  gave  him  mastery  only  over 
those  immediately  engaged  against  him;  while  his 
equity  and  moderation  secured  his  hold  upon  the  en- 
tire Athenian  people  and  their  city.  For  he  did  not 
allow  his  measures  to  be  dictated  by  vindictive  passion, 
but  laid  aside  his  arms  and  warlike  measures  as  soon  as 
he  found  himself  in  a  position  to  display  the  mildness 
of  his  temper  and  the  uprightness  of  his  motives.  With 
this  view  he  dismissed  his  Athenian  prisoners  without  ran- 
som, and  took  measures  for  the  burial  of  those  who 
had  fallen  .  .  .  and  presented  most  of  those  whom  he  re- 
leased with  suits  of  clothes The  pride  of  the 

Athenians  was  not  proof  against  such  magnanimity  and 
they  became  his  zealous  supporters  instead  of  antagon- 
ists, in  all  his  schemes." 


'Polybius  V,  11  and  12,  translated  by  Shuckburgh. 


f|Q  Belligerent  Occupation 

The  laws  of  waf ,  however,  in  Polybius'  time,  permit  the  defeated 
with  their  wives  and  children,  to  be  sold  into  slavery.  ■ 

It  may  be  said  in  summarizing  ancient  usage  upon  the  subject 
in  question  that  obviously  there  could  not  be  international  law  in  re- 
gard to  belligerent  occupation  or  any  part  thereof,  since  intematioii- 
al  law  was  in  no  case  beyond  the  stage  of  comity,  and  even  then  exist- 
ed as  an  inter-tribal  understanding;  that  the  cases  in  which  a  dis- 
tinction was  observed  between  combatants  and  non-combatants 
were  sporadic,  not  of  permanent  influence,  and  that  consequently 
there  is  no  continuity  of  development  exhibited  therein;  but  tha;t 
such  as  they  are  they  deserve  mention  in  a  historical  treatment  of 
the  development  of  the  subject  under  consideration.    , 

ROMAN  LAW  AND  USAGE  "'"^d  \n^ 

It  is  a  safe  precept  in  legislation  that  law  should  not  precede 
public  sentiment.  Since  international  law,  however,  is  not 
a  matter  of  legislation  and  is  ratified  by  none  but  quasi  sanctions, 
it  not  only  may  precede  public  sentiment,  but,  so  far  as  the  latter 
is- expressed  in  military  usage,  it  is  under  the  ethical  necessity  of 
doing  so, — of  marching  with  the  van  instead  of  the  main  body  of 
opinion.  During  the  development  of  our  modern  international 
tode  its  basis  was  primarily  ethics  or  morality,  and  secondarily 
custom.  It  is  probable  that  modem  authorities  woiild  reverse  this 
relationship  so  far  as  it  contemplates  the  usage  of  today, — a  nat- 
ural result  of  the  fact  that  the  formative  period  is  somewhat  ad- 
vanced and  the  period  of  codification  has  scarcely  begun. 

Keeping  this  statement  in  mind,  it  need  not  be  a  matter  Of  sur- 
prise if  we  discover  that  upon  the  particular  point  of  our  inquiry 
Roman  law  outran  the  usage  of  the  time.  Hence,  though  no  ad- 
equate conception  is  to  be  discovered  in  their  military  usage  of  the 
phase  of  warfare  we  know  as  belligerent  occupation,  the  legal  basis 
therefor  may  be  discovered  in  its  incipiency  in  the  writings  of 
Roman  jurists;  and  hence,  moreover,  we  are  primarily  concerned 
with  Roman  law  in  its  treatment  of  the  property  of  the  enemy,  and 
with  Roman  military  usage  in  its  treatment  of  the  persons  of  the 
enemy. 

Primitive  warfare  involves  the  slaughter  of  the  armed  and  un 
armed  indiscriminately,  save  as  caprice  may  dictate,  and  earl- 


Roman  LaW  and  Usage'  13 

Roman  usage  was  certainly  primitive.  The  distinction  between 
combatants  and  non-combatdnts  remained  to  be  made  in  law  many 
centuries  after  Rome  fell.  The  Romans  went  to  war  with  the 
enemy  as  a  whole  nation  and  made  peace  with  the  whole  nation, 
and  there  was  no  intermediate  stage  between  the  declaration  of  war 
and  the  proclamation  of  peace.  The  primitive  severity  of  her  war- 
fare gradually  relaxed  as  it  was  discovered  that  it  was  more  profit- 
able to  sell  captives  into  slavery  than  to  slaughter  them.  Poly- 
bius,  the  Greek  historian  of  Rome,  thought  that  the  war  practice 
of  the  Romans  was  mild,  and  of  such  matters  Polybius  was  a 
severe  judge ;  yet  in  his  day  and  for  many  centuries  later  the  Ro- 
man army  was  followed  by  the  slave  merchant.  Not  the  only 
prisoners  of  war  but  women  and  children  as  well, — all  were 
sold  sub  jugum.  "When  war  comes",  says  Tacitus,  "the  guilty 
and  the  innocent  fall  alike,"  and  Grotius,  commenting  upon  Ro- 
man practice  at  this  time  says  that  "no  law  spares  or  protects 
a  captive." 

The  next  great  step  came  very  late  in  Roman  history.  It  was 
the  commutation  of  slavery  to  ransom.  The  influence  which  was 
probably  most  potent  in  bringing  this  about  was  Christianity. 
By  this  substitution  of  a  money  loss  for  that  of  personal  freedom, 
cities  and  districts  might  profit  as  well  as  captive  individuals,  and 
thus  the  horrors  of  a  war  were  incalculably  mitigated  so  far  as  the 
persons  of  the  unfortunate  were  concerned.  The  lateness  of  this 
change,  however,  leaves  the  fact  unaltered  as  to  the  severity  of 
Roman  usage  in  general. 

There  are  to  be  discovered  now  and  then  certain  gratifying  ex- 
ceptions to  this  general  severity  toward  the  persons  of  the  enemy, 
as  is  recorded  of  Marcellus  in  the  protection  of  the  honor  of  women 
at  the  capture  of  Syracuse — for  which  instance  Grotius  finds  par- 
allels in  Greek  warfare,  and  more  especially  in  that  of  the  Hebrews. 
Scipio  says  that^  "it  concerns  both  him  and  the  Roman  people  that 
nothing  which  is  held  sacred  anywhere  should  be  violated  by  them." 
Many  other  quotations  might  be  offered  of  noble  sentiments  of 
humanity  toward  the  fallen.  The  Roman  writers  as  well  as  the 
Greek  seemed  fond  of  referring  to  the  laws  of  war  {jus  belli)  and 
to  invoke  their  condemnation  of  unwonted  ferocity.  Just  what 
these  laws  were  we  have  no  means  of  knowing  except  through  their 
war  customs.     The  Romans  were  accustomed  to  refer  them  for 


•Grotius  III,  4,  19. 


14  Belligerent  Occupation 

general  authenticity  to  the  Twelve  Tables;  but  it  is  improbable 
that  there  was  anything  more  definite  in  the  concept  of  jus  bellt 
than  that  it  was  merely  a  part  of  jus  naturae,  implying  a  senti- 
ment to  the  effect  that  cruelty  even  to  an  enemy  should  have 
bounds.  Certain  ceremonies*  connected  with  the  proclamation  of 
war,  the  sanctity  of  heralds,  etc.,  may  have  been  included  in  this 
indefinite  concept.  However  that  may  be,  neither  Ulpian,  Gaius, 
nor  Justinian  makes  any  mention  by  name  of  such  laws. 

Enough  has  been  said  to  show  that  so  far  as  the  persons  of  the 
enemy  were  concerned,  Roman  custom  slowly  improved  with  the 
passing  of  the  centuries,  keeping,  perhaps,  slightly  in  advance  of 
contemporary  usage ;  but  that  nowhere  in  law  or  custom  was  there 
a  recognition  of  the  difference  between  the  rights  of  combatants 
and  non-combatants.  All  suffered  the  same  fate,  whether  exter- 
mination, slavery,  or  ransom. 

Turning  from  the  treatment  of  persons  to  that  of  property,  it  is 
possible  to  record  a  greater  elaboration  both  in  legal  theory  and  in 
military  usage.  In  the  first  place,  public  property,  then  as  now, 
whether  movable  or  immovable,  was  liable  to  capture.  The  more 
magnanimous  commanders  generally  spared  the  temples  and 
shrines  and  all  other  objects  and  places  of  worship.  Likewise 
statues  and  other  works  of  art  enjoyed  some  such  immunity, 
though  there  are  ancient  as  well  as  modem  instances  of  the  plun- 
dering of  Greece.  There  is  but  little  difference  to  record  between 
Roman  and  modem  usage  as  affecting  public  property.  The 
main  point  is  that  in  modem  times  under  the  development  of 
belligerent  occupation  the  occupant  is  conceived  to  have  only  the 
right  of  w5M/rMc^  of  all  public  immovable  property.  He  may  not 
destroy  it  nor  alienate  nor  acquire  title  to  it  until  the  ratification 
of  peace;  but' he  may  use  it  and  derive  all  revenues  arising  from  it, 
RomansV'however,  raised  no  question  as  to  the  ownership  of 
public  property  either  movable  or  immovable,  when  captured 
by  their  armsV  arid  if 'they  exempted  places  of  worship  or  objects 
of  art  it  was  a^^a  concession  to  religious  sentiment,  or  in  defer- 
ence to  a  general  custom,  or  prompted  by  a  spirit  of  magnani-' 
mity.  and  not  as  an  admitted  legal  right. 

What  has  just  been  said  of  public  property  may  just  as  exactly 
be  affirmed  concerning  private  property.     ^"Aucune  difference 

'  I.  c,  portions  of  the  jus  fetiale. 

*  Nys,  Ernest,  Les  Origines  du  Droit  International,  p.  193. 


Roman  Law  and  Usage  15 

n'est  faite  entre  la  propriete  privee  et  la  propriete  de  I'etat.": 
But  questions  as  to  the  possession  of  captured  goods  must  neces- 
sarily arise  out  of  the  difference  in  the  original  ownership.  State 
property  captured  by  another  state  undoubtedly  belongs  to  the 
victor  and  not  to  the  individuals  composing  the  army.  But  the 
victorious  state  was  not  conceded  so  clear  a  title,  or  able  to  en- 
force it,  when  private  property  was  the  spoil.  It  can  easily  be 
shown  as  a  matter  of  logic  that  as  soldiers  are  only  employees  of 
the  state,  which  assumes  all  responsibility  for  their  acts,  the  state 
should  acquire  the  ownership  of  everything  they  capture.  But 
such  reasoning  will  never  satisfy  a  patriot,  who  risks  his  life  for 
a  pitiful  stun  per  month,  when  food  and  comfort  are  needed;  much 
less  the  cupidity  of  those  who  fight  for  gain.  In' the  capture  of 
private  property  the  individual  element .  is  more  in  evidence  on 
both  sides,  and  this  accounts  for  the  appHcation  of  the  doctrine  of ■ 
occupatio  to  such  cases,  if,  indeed,  it  does  not  account  for  its  origin. 
Livy,  according  to  Grotius,^  makes  private  property  begin  "when, 
men  took  possession  of  what  was  vacant, or  won  it  in  war." 

"The  Roman  principle  of  occupancy  and  the  rules 'into  which 
the  jurisconsults  expanded  it,"^  says  Maine,  ."are  the  sources  of 
all  modem  International  Law  on  the  subject  of. capture  in  War." 
The  statement  may  pass  unchallenged  here,  providing  the  term 
occupatio  is  used  in  a  sense  broad  enough  to  include  the  doctrine 
of  postliminium.  Briefly  stated  the  doctrine  of  occupatio,  as  ap- 
plied to  war  was  as  follows :  Things  which  have  not,  or  never  have 
had  an  owner,  i.  e.  res  nullius,  may  be  taken  possession  of  by  the 
first  comer.  •  Now  the  property  of  the  enemy  was  in  Roman  law 
res  nullius,  inasmvich  as  it  was  the  property  of  persons  whom  that 
law  regarded  as  nobodies,  and  who,  if  captured,  themselves  became 
res  nullius."  "Those  things  which  we  take  from  the  enemy,"  5:ays . 
Justinian,^  "are^also-ours  at  once  by -the  law  of  nations;  so  much 
so  that  even  freemen  are  reduced  into  slavery  to  us." 

But  at  this  point  the  ..effect  of  the  distinction  between  movable 
and  immovable  property  must  be  noticed.  Obviously -the  latter 
ecJuld  not  be  appropriated  by  the  first  comer,  as  Grotius  remarks, 
for  if  it   could   the   result  would- be   the   disintegration  of  the 

1  Grotius,  III,  6,  2,  3. 

*  Maine,  Sir  Henry,  Ancient  Law,  p.  239. 

'"Item  ea  quae  ex  hostibus  capimus  jure  gentium  statim  noster  fiunt; 
adeo,  quidem,  ut  et  liberi  homines  in  servitutem  nostram  deducantur."  Jus- 
tinian II,  1,  17  (Emperor  of  Rome  527  A.  D.).     See  also  Gaius  II,  69  A.  D. 


16  Belligerent  Occupation 

army.  Moreover,  while  the  issue  of  the  conflict  is  in  doubt  there 
is  no  such  thing  as  permanent  and  stable  possession.  From  these 
fundamental  facts  several  important  results  follow :  first,  the  title 
to  immovable  property  must  necessarily  rest  in  the  state  and  not 
in  the  soldier;  second,  while  firm  possession  thereof  is  contine;ent 
upon  the  successful  termination  of  the  war,  movable  property  need 
only  be  brought  intra  praesidia.  As  a  corollary  to  this  there  is  a 
stronger  presumption  in  favor  of  ownership  by  individual  capture 
than  by  the  state.  Third,  property,  whether  movable  or  immovable, 
which  formerly  belonged  to  Roman  citizens,  was  then  captured  by 
the  enemy  and  finally  recaptured  by  the  Romans,  gives  rise  to  a 
question  of  proprietorship  between  the  original  owner  and  the 
recaptor,  and  hence  to  the  doctrine  of  postliminium.  Further,  as 
a  logical,  though  possibly  not  a  historical  corollary  to  the  prin- 
ciples of  occupatio  and  postliminium,  there  developed  in  due  time 
the  doctrine  of  usucapio  or  prescription,  according  to  which  pos- 
session was  converted  into  ownership  after  the  lapse  of  a  definite 
period  of  time.  And  here  again  a  difference  was  observed  as  to 
the  lapse  of  time  for  movable  and  immovable  property.  For  the 
former,  according  to  Gaius  and  Ulpian,*  one  year  was  sufficient; 
for  the  latter,  two  years  were  necessary  in  order  to  insure  firm 
possession  or  ownership.  Usurpatio  remains  still  to  be  noticed, 
but  it  is  best  considered  in  another  connection. 

Going  back  to  the  statement  that  there  is  a  stronger  presump- 
tion in  favor  of  individual  ownership  of  private  movable  property 
taken  in  war  instead  of  public  ownership,  it  is  by  no  means  clear 
that  this  was  the  recognized  military  custom  among  the  Romans ; 
if  anything,  the  evidence  seems  to  lead  to  the  opposite  conclusion. 
Grotius  quotes  Dionysius  of  Halicamassus,  whom  he  calls  a  most 
diligent  observer  of  Roman  manners,  to  the  effect  that^  "whatever 
is  captured  from  the  enemy  the  law  directs  to  be  public  property, 
so  that  not  only  private  persons  are  not  the  owners  of  it,  but  even 
the  general  is  not.  The  questor  takes  it,  sells  it,  and  carries  the 
money  to  the  public  account."  It  must  be  added,  however,  grant- 
ing that  the  law  was  all  that  Dionysius  claimed  for  it,  that  it  was 
still  within  the  discretion  of  the  commander  as  to  what  extent  the 

'Ulpian  XIX,  8.  Gaius  II,  42.  The  latter  adds  that  this  is  so  laid 
down  in  the  Twelve  Tables,  which  would  give  it  great  antiquity.  Justinian 
changed  it  to  three  years  for  the  former  and  ten  to  twenty  for  the  latter. 
Justinian  II,  6. 

*  Grotius  III,  6,  14. 


Roman  Law  and  Usage  17 

private  property  of  the  enemy  was  to  be  treated  as  public  property 
when  captured.  "They  who  wished  to  be  or  to  be  thought  most 
scrupulous  did  not  touch  the  prey  at  all,  but  if  the  prize  were  money 
they  directed  it  to  be  received  by  the  questor;  or  if  it  were  other 
objects  ordered  them  to  be  sold  at  auction  by  che  questor.  ^' '  Others 
again  "sold  it  without  the  aid  of  the  questor  and  transferred  it  to 
the  treasury."  Again,  ^"booty  which  is  given  up  to  the  soldiers  is 
either  di\dded  or  scrambled  for.  It  may  be  divided  in  the  propor- 
tion of  the  pay  or  of  the  deserts  of  the  individuals.  Polybius  ex- 
plains accurately  the  whole  scheme  of  such  a  division ;  namely  that 
one  part  of  the  army,  the  lesser  portion,  was  commonly  sent  to 
collect  the  booty,  and  what  each  found  he  was  ordered  to  bring  into 
the  camp  that  it  might  be  equally  divided  by  the  tribunes;  those 
being  summoned  to  take  their  share  who  had  guarded  the  camp." 
"I  find  this  proportion  in  Livy,"  continues  Grotius,  "one  share  to 
a  foot  soldier,  twice  as  much  to  a  centurion,  and  three  times  as 
much  to  a  horseman  or  knight."  On  the  other  hand,  basing  his 
opinion  in  that  of  Dionysius,  "those  persons,"  he  says,. "are  more 
praised  who  giving  up  their  right,  took  no  part  of  the  booty  to  them- 
selves; like  Fabricius,  who  in  his  love  of  glory  put  aside  even  just 
gain";  and  likewise  M.  Porcius  Cato,  who  asserted  that  "nothing 
should  come  to  him  from  the  spoils  of  war,  except  what  he  had 
spent  in  meat  and  drink",  and  that  "he  would  rather  contend  for 
the  prize  of  virtue  with  the  best  than  for  the  preeminence  in 
wealth  with  the  richest."^ 

Summing  up  what  has  just  been  said  concerning  the  treatment 
of  private  movable  property,  it  would  appear  that  while  plunder 
was  permitted  by  Roman  military  law,  the  commander  could  and 
sometimes  did  prohibit  it  altogether.  When  he  did  not,  the  law  was 
that  the  plundering  should  be  done  systematically,  each  one  for 
the  whole  anriy  and  not  for  himself.  Frequently,  perhaps  even  in 
the  majority  of  cases,  the  commander  permitted  indiscriminate  pil- 
lage, regardless  of  the  military  law,  for  many  concessions  had  to  be 
made,  no  doubt,  to  the  cupidity  of  the  soldiers.  It  must  be  remem- 
bered moreover  that  a  large  part  of  Roman  warfare  was  carried 
on  with  peoples  less  civilized  than  themselves,  and  a  war  between, 
races  of  an  unequal  degree  of  civilization  is  apt  to  disregard  the 

1  Grotius,  III,  6,  16. 
» Grotius,  III,  6,  17. 
'  Grotius,  III,  6,  17,  4. 


18  Belligerent  Occupation 

laws  of  civilized  warfare.  Considering,  therefore,  the  Roman  view 
of  the  rights  of  enemy  persons,  it  is  evident  that  whatever  restraints 
they  placed  upon  their  soldiers  in  regard  to  pillage  must  have  been 
dictated  by  expediency  and  good  discipline  rather  than  by  com- 
passion for  the  enemy.  Cicero's  dictum  that  "it  is  not  contrary 
to  the  laws  of  nature  to  spoil  the  goods  of  him  who  it  is  lawful  to 
kill,"  betrays  the  primitive  concept  of  war  which  obtained  in  his 
time,  in  that  so  little  compassion  is  found  for  an  enemy  in  the  mind 
of  a  naturally  compassionate  man.  Such  motives  weighed  little 
in  the  mitigation  of  war  until  very  late  in  the  life  of  the  empire. 

So  far,  not  a  hint  do  we  find  in  law  or  in  usage  of  that  which  we 
are  seeking — the  origins  of  belligerent  occupation.  When,  how- 
ever, we  come  to  consider  more  nearly  the  subject  of  postliminium, 
we  see  the  initial  steps  in  the  development  thereof  with  a  certainty 
that  almost  amounts  to  positive  conviction. 

Postliminium,  as  used  by  Justinian,  has  been  thus  defined:  "By 
the  jus  postliminii,  property  taken  in  war  and  retaken  from  the 
enemy  was  restored  to  the  original  owners;  and  captives,  on  their 
return  to  their  own  country  were  re-established  in  all  their  former 
rights.  When  the  captive  returned,  all  the  time  of  his  captivity 
was,  in  the  eyes  of  the  law,  blotted  out,  and  he  was  exactly  in  the 
position  he  would  have  held  if  he  had  not  been  taken  captive." 
*'Thus,"  says  Justinian,  ^"postliminium  supposes  that  the  cap- 
tive, has  never  been  absent."  Thence  comes  the  word  postlim- 
inium, because  the  prisoner  returned  to  the  same  limits  whence 
he  had  been  lost.  The  prisoner,  also,  who  is  retaken  on  the 
defeat  of  the  enemy  is  considered  to  have  come  back  by  postlim- 
inium. Gaius,^  writing  about  four  hundred  years  earlier,  recog- 
nizes the  right  of  postliminium,  "whereby  on  escape  from  captivity 
a  man  recovers  all  former  rights ;  accordingly  if  the  father  returns 
he  will  have  his  children  in  his  power;  if  he  dies  in  captivity  his 
children  will  be  independent,  but  whether  their  independence  dates 
from  the  death  of  the  parent  or  from  his  capture  by  the  enemy 
may  be  disputed."  The  right  of  patria  potestas  remained  in  sus- 
pense as  long  as  there  was  doubt  as  to  the  father's  return,  but  it 
never  came  to  an  end  until  it  was  known  that  he  would  never  re- 
turn to  claim  it.  To  the  same  effect,  though  much  more  briefly, 
speaks  Ulpian  (X,  4) .     When  it  is  recalled  that  by  means  of  patria 

» Justinian,  I,  XII,  5. 

*In  the  reign  of  Antoninus  Pius,  A.  D.  138-161. 


Roman  Law  and  Usage  19 

potestas  the  father  has  the  power  of  hfe  and  death  over  his  children, 
the  significance  of  its  interruption  becomes  apparent;  for  it  is  no 
less  than  that  which  a  modem  state  exercises  over  its  citizens,  and 
its  interruption  is  therefore  equivalent  to  an  interrupted  sovereignty. 
But,  as  is  well  known,  the  law  of  postliminium  was  only  partial 
in  its  application,  including  a  limited  number  of  objects.  The  gen- 
eral rule  was  that  whatever  was  captured  became  praeda.  Post- 
liminium, therfore,  appears  as  an  exception  to  this  rule.  Just  what 
did  return  to  its  former  state  or  what  was  the  legal  method  of  re- 
return  cannot  be  positively  stated;  but  we  know  that  immovable 
property  was  especially  so  designated,  and  that  slaves,  horses, 
mules,  and  ships  used  in  war  were  likewise  included.  The  title  to 
property  of  this  class  could  not  be  so  easily  obtained  because  owner- 
ship was  either  harder  to  establish  or  was  likely  to  be  longer  in 
controversy.  Land  could  not  be  brought  intra  praesidia — ^not  even 
constructively — ^until  the  close  of  the  conflict.  Title  to  it  must 
therefore  remain  in  suspense  from  the  time  that  the  original  sover- 
eignty was  overthrown  until  its  authority  should  be  re-established 
or  that  of  the  new  could  supersede  it.  This  condition  of  suspense 
of  title — bear  in  mind  that  we  are  considering  the  case  from  the 
viewpoint  of  civil  law — was  what  Roman  jurists  would  probably 
have  called  usur patio.  It  corresponds  in  an  elementary  way  to 
the  status  which  we  call  belligerent  occupation.  However  it 
represents  merely  a  hiatus  in  legality  rather  than  a  continuance 
thereof  under  the  authority  of  a  foreign  government;  for  it  is  a 
long  step  from  this  primitive  concept  of  a  mere  hiatus  in  legal 
lations  during  war  to  that  of  our  modem  notion  of  belligerent  oc- 
cupation, where  acts  done  under  the  sanction  of  hostile  invaders 
may,  and  even  must,  be  legalized  by  the  invaded  state,  if  ever  it 
should  be  so  fortunate  as  to  reassert  its  authority  over  the  re- 
conquered territory.  Imagine  the  amazement  of  a  Roman  jur- 
ist at  the  idea  of  legalizing  contracts  and  sales  in  Roman  ter- 
ritory made  under  Hannibal's  sanction  during  his  occupation 
thereof'^  Many  centuries  were  yet  to  elapse  before  the  prin- 
ciple of  equality  of  states  made  it  possible  and  necessary  that  a 
condition  of  legality  could  continue  in  the  midst  of  hostilities. 

^  We  are  told,  to  be  sure,  that  at  this  particular  time  land  occupied  by 
Hannibal's  army  sold  for  its  customary  price, — so  confident  were  the  Ro- 
mans of  victory;  but  such  a  sale  must  needs  be  a  matter  of  subsequent  leg- 
alization, as  Roman  law  could  not  have  recognized  Hannibal's  sanction 
thereof  as  binding. 


20  Belligerent  Occupation 

Hence,  at  the  most,  we  can  consider  in  this  connection  only  the 
hypothesis  of  an  invasion  of  Roman  territory,  the  successful  ex- 
pulsion of  the  intruder,  the  return  of  the  said  territor^^  to  Roman 
authority  as  the  government  both.de  facto  and  de  jure  and  the  re- 
sumption of  legal  relations  according  to  postliminium. 

Narro^^^ng  the  case  to  such  limits  it  is  evident  that  it  is  totally 
within  the  jurisdiction  of  the  Civil  Law.  But  t^ie  Civil  Law  very 
greatly  influenced  International  Law,  as  we  call  it  now,  through 
its  application  to  international  relation  by  the  praetor  peregrinus. 
No  doubt,  therefore,  through  his  functions,  the  principle  of  post- 
liminium  became  international  in  its  application  though  originat- 
ing as  a  part  of  the  civil  law. 

In  point  of  antiquity  it  isdoubtfulif  any  principle  in  international 
law  takes  precedence  of  postliminium.  We  find  no  mention  of  it 
in  what  remains  to  us  of  the  Twelve  Tables ;  but  coming  down  to 
the  time  of  Gaius,  the  earliest  of  the  great  jurists,  we  find  that  the 
right  is  fully  recognized.  True,  the  illustration  he  used,  that  of 
the  returned  captive  who  regains  his  jural  capacity  of  patria  po- 
testas,  inay  not  at  that  time  have  contemplated  property,  but  this, 
at  all  events,  was  included  later.  Then  with  the  extension  of  the 
influence  of  the  Civil  Law  to  international  questions  through  the 
jurisdiction  of  the  praetor  peregrinus  the  suspension  of  patria  po- 
testas  during  the  imprisonment  furnished  a  striking  analogue  for 
the  supension  of  title  in  the  case  of  usur patio  in  an  international 
conflict.  There  seems  to  be  no  good  reason  to  doubt  therefore, 
that  we  have  a  historical  sequence  in  these  steps,  leading  up  toward 
the  establishment  of  a  legal  status  for  occupied  territory.  We  shall 
see  in  subsequent  chapters  that  in  approaching  the  same  doctrine 
of  postliminivmi  we  come  the  nearest  to  the  subject  of  our  own  in- 
quiry— to  that  phase  of  warfare  which  regards  the  dispossessed 
sovereignty  as  merely  in  abeyance  and  by  no  means  defunct,  while 
on  the  contrary  the  government  de  facto  is  entitled  to  respect  and 
to  constrained  obedience  from  its  enemj^  subjects,  a  dual  re- 
lationship both  of  states  to  citizens  and  of  citizens  to  states,  the 
most  complex  of  all  political  situations. 

Ill 
FROM  JUSTINIAN  TO  THE  PUBLICISTS 
The  political  upheavals  following  the  fall  of  Rome  and  continuing 
with  more  or  less  severity  down  to  the  time  of  the  publicists  of  the 


From  Justinian  to  the  Publicists  21 

seventeenth  century  it  is  not  our  province  to  rehearse.  The  char- 
acter of  the  military  usage  of  this  period  shows  a  relapse  toward 
barbaric  methods  such  as  wholesale  extermination,  enslavement, 
maltreatment  of  prisoners,  and  all  sorts  of  indignities  toward  the 
defenseless.  Any  number  of  minor  causes  may  be  adduced  to  ac- 
count for  this  degeneracy ;  but  the  primary  causes  in  all  probabil- 
ity, were  the  destruction  of  that  world  power  which  had  done  such 
good  service  as  an  international  policeman  for  so  many  centuries 
that  people  could  not  get  rid  of  the  idea  that  it  must  exist  for  sev- 
eral more  centuries  after  it  had  ceased  to  exist;  and  second,  the 
fact  that  it  took  so  long  to  develop  a  competent  successor.  Not 
until  the  modem  principle  of  "the  balance  of  power"  was  estab- 
lished at  the  Peace  of  Westphalia  in  1648,  thus  securing  a  democ- 
racy of  states  instead  of  a  hegemony,  and  not  until  the  modern 
states  had  had  time  to  emerge  from  the  wreck  of  the  Roman  em- 
pire, to  establish  their  independence  and  to  agree  upon  the  prin- 
ciple of  equality  was  it  possible  for  international  order  to  be  re- 
stored. One  is  tempted  to  say  that  the  long  stretch  of  centuries 
filling  this  interim  constitutes  an  interregnum  of  international  law, 
but  this  would  disregard  the  more  or  less  effective  service  rendered 
by  the  so-called  Holy  Roman  Empire  and  the  Roman  Catholic 
Church. 

The  two  observations  to  be  made  upon  this  period  with  refer- 
ence to  our  subject,  are,  first  that  nothing  was  added  to  the  legal 
and  theoretical  views  of  the  Roman  jurists,  and  second,  the  usages 
of  war,  with  an  occasional  brilliant  exception  reverted  to  the  bar- 
barity of  the  earliest  Roman  times.  It  will  not  be  irrelevant  to 
point  out  some  of  these  gratifying  exceptions  in  so  far  as  they 
contribute  to  the  discussion  and  one  of  them,  the  Ordinances  of  War 
of  Henry  V.  will  receive  extended  notice. 

An  instance  of  the  influence  of  late  Roman  usage  upon  less  civil- 
ized peoples  is  seen  in  the  restraint  which  Belisarius  exercised  over 
his  army  of  "Huns,  Herulians,  Gepidae,  Moors,  Armenian  and  Isau- 
rian  mountaineers."  It  is  said^  that  "when  invading"  the  Vandal 
kingdom  as  a  province  about  to  pass  back  to  its  rightful  owner 
Belisarius  deemed  it  politic  to  restrain  his  troops  from  pillage; 
theinhabitantssufiferedno  violence,  even  heard  no  threats; 


^Walker,  T.  A.,  History  of  the  Law  of  Nations,  Vol.  1,  p.  71,  from  Pro- 
copius  I,  200. 


22  Belligerent  Occupation 

the  artificers  were  not  interfered  with;  the  shops  remained  open; 
the  soldiers  were  lodged  in  regularly  assigned  billets  and  bought 
their  supplies  in  the  open  market." 

Another  instance  to  the  same  effect  is  that  given  of  Totila,  the 
Ostro-Gothic  opponent  of  Belisarius,'  "who  restrained  his  troops 
from  the  plunder  of  captured  cities,  and  on  the  fall  of  Rome  (546 
A.  D.)  sternly  forbade  murder,  rape  or  other  open  violence."  A 
century  or  more  before  this  the  Gothic  leaders,  yielding  to  the  in- 
tercession of  the  Pope,  did  what  they  could  to  spare  ^"the  defence- 
less, exempt  the  captives  from  torture,  and  protect  the  cities  from 
fire." 

The  Saracen  war  practice  was  probably  not  on  a  lower  level  than 
that  of  contemporary  Europe.  To  those  who  opposed  them  in 
arms  no  mercy  was  shown,  and  extermination  or  slavery  was  apt 
to  be  the  fate  of  those  who  offered  a  prolonged  resistance  or  refused 
to  except  the  faith  of  Islam.  But  it  is  related  that  their  treat- 
ment of  the  unresisting  populace  was  peculiarly  mild.  The  fol- 
lowing charge^  of  Abu  Bekr  to  his  troops,  which  charge  was  re- 
peated by  some  later  caliphs,  shows  all  the  spirit  of  modern  usage 
and  somewhat  of  its  explicitness : 

"If  God  should  give  you  the  victory,  do  not  abuse  your  ad- 
vantages, and  beware  how  you  stain  your  swords  in  the  blood  of 
him  who  yields,  neither  touch  ye  the  children,  the  women,  nor 
the  infirm  old  men  whom  ye  may  find  among  your  enemies.  In 
your  progress  through  the  enemy's  land,  cut  down  no  palms  or 
other  fniit  trees;  destroy  not  the  products  of  the  earth;  ravage  no 
fields ;  bum  no  dwellings ;  from  the  stores  of  your  enemy  take  only 
what  you  need  for  your  wants.  Let  no  destruction  be  made 
without  necessity,  but  occupy  the  cities  of  the  enemy;  and  if 
there  be  any  that  do  serve  as  an  asylum  to  your  adversaries, 
them  do  you  destroy.  Treat  the  prisoner  and  him  who  renders 
himself  to  your  mercy  with  pity,  as  God  shall  do  to  3^ou  in  your 
need,  but  trample  down  the  proud  and  rebellious,  nor  fail  to  crush 
all  who  have  broken  the  conditions  imposed  on  them  Let  there 
be  no  perfidy  nor  falsehood  in  your  treaties  with  your  enemies; 
be  faithful  in  all  things,  proving  yourselves  ever  upright  and  noble 
and  maintaining  your  word  and  promise  truly.     Do  not  disturb 

'Walker,  History  of  the  Law  of  Nations,  I,  p.  65. 
*  Hosack,  The  Law  of  Nations,  I,  p.  65. 

»Conde,  Arabs  in  Spain,  I,  p.  37,  from  Walker's  History  of   the  Law 
of  Nations,  p.  76.     Time,  about  the  middle  of  the  seventh  century. 


From  Justinian  to  the  Publicists  23 

the  quiet  of  the  monk  or  hermit,  and  destroy  not  their  abodes, 
but  inflict  the  rigors  of  death  upon  all  who  shall  refuse  the  condi- 
tions you  would  impose  on  them." 

What  is  particularly  noticeable  in  these  words  of  the  chief  Mo- 
hammedan ruler  is  the  sharp  distinction  drawn  between  conquered 
and  unconquered  land  and  people,  as  shown  in  the  mildness  ac- 
corded to  the  former.  Needless  to  say,  the  Saracen  practice  scarce- 
ly maintained  the  high  level  set  by  their  chief, — an  observation 
which  might  as  truly  be  made  of  modem  nations,  though  with  less 
justification  for  the  latter.  The  usage  of  the  Saracens  of  a  later 
date  has  often  been  contrasted  with  that  of  the  Crusaders,  much 
to  the  disadvantage  of  the  latter;  and  if  extreme  cases  be  taken 
as  standards  of  judgment,  such  as  the  taking  of  Jerusalem  in  1099, 
the  justice  of  this  verdict  is  unquestionable. 

The  spirit  of  chivalry,  it  is  disappointing  to  say,  was  not  influ- 
ential in  the  development  of  belligerent  occupation.  In  the  words 
of  a  historian,  ^"We  are  driven  to  the  conclusion  that  the  spirit 
of  chivalry,  however  strongly  it  might  operate  at  times  upon  in- 
dividuals, had  but  little  real  effect  upon  the  policy  of  princes  and 
the  general  condition  of  mankind."  The  greater  the  resistance  the 
greater  the  punishment,  seems  to  have  been  a  favorite  canon  of 
military  usage,  and  the  defenders  of  a  city  or  a  fortification  Jiad  no 
reason  to  expect  clemency  in  proportion  to  the  stubbomess  of 
the  defense. 

The  name  of  Alfred  the  Great  may  well  be  mentioned  among 
those  whose  military  usage  was  most  humane  in  a  semi-barbarous 
age ;  for  even  to  the  Danes,  the  conquered  invaders  of  his  own  do- 
minions, he  willingly  gave  peace,  and  permission  to  remain  and 
become  citizens.  His  successors,  the  Norman,  Angevin  and  Plan- 
tagenet  rulers  of  England  were  but  men  of  their  times,  and  rarely 
anticipated  the  humane  usages  of  the  present  day,  as  did  Alfred, 

But  the  unique  distinction  belongs  to  one  of  the  early  kings  of 
England  of  having  made  the  first  attempt  at  a  manual  of  instruc- 
tion for  his  army  in  the  territory  of  the  enemy.  This  ha's  already 
been  referred  to  as  the  Ordinances  of  War  of  Henry  V. — a  most 
extraordinary  document  when  we  consider  the  date  of  its  issue, 
the  year  1419.  If,  however,  the  appearance  of  this  document  at 
so  early  a  date  is  remarkable,  the  circumstances  of  its  issue  will 
in  some  measure  account  therefor. 


'  Hosack,  The  Law  of  Nations,  p.  80. 


24  Belligerent  Occupation 

Henry  had  just  fought  and  won  the  great  battle  of  Agincourt. 
He  was  mo^dng  leisurely  toward  Paris,  and  had  already  opened 
up  negotiations  wdth  one  of  the  factions  of  its  defenders  through 
the  Duke  of  Burgundy  for  its  surrender.  He  was  likewise  nego- 
tiating for  the  hand  of  the  princess  Catherine  in  marriage.  He 
had  reached  the  town  of  Mantes,  and  had  already  begun  to  look 
upon  the  French  peasantry  as  his  future  subjects.  It  was  here 
that  he  caused  to  be  prepared  the  Ordinances  of  War,  designed 
both  to  secure  good  discipline  among  his  English,  Welsh  and  Irish 
supporters — a  task  by  no  means  easy  considering  the  mutual  dis- 
trust and  dislikes  among  them — and  to  restrain  his  rough  soldiery 
from  their  customary  excesses,  and  thus  to  attract  the  population 
to  himself. 

The  importance  of  this  early  manual  demands  extended  notice. 
It  will  be  observed  that  most  of  it  relates  to  "military  law",  that 
body  of  laws  which  formulates  discipline,  and  which  therefore  does 
not  concern  us.  The  sections  which  pertain  to  our  subject  will 
now  be  considered  in  some  detail. 

Sec.  3.  "For  Holy  Church".  This  section  secures  the  exemp- 
tion of  ecclesiastical  persons  and  property  from  violence.  Such 
exemption  was  by  no  means  unusual.  Even  Attila  the  Hun  had 
shown  ^ome  respect  to  the  claims  of  the  church,  and  the  Gothic 
Alaric,  Genseric  and  Totila  had  shown  much  more.  It  is  notice- 
able, too,  that  this  comes  first  on  the  list,  significant  of  the  only 
power  which  wielded  any  considerable  restraining  influence  since 
the  decline  of  Rome. 

The  remainder  of  this  section  contains  a  much  more  remark- 
able instance  of  protection,  viz.,  that  given  to  the  honor  of  women. 
To  the  same  effect  and  with  an  added  touch  of  chivalrous  tender- 
ness is  Sec.  29.  To  punish  with  death  a  soldier  who  turns  from 
the  slaughter  of  men  to  violence  toward  women — such  a  penalty 
is  not  to  be  looked  for  even  in  the  manuals  of  the  present  day. 
Penalties,  to  be  sure,  were  much  more  severe  at  that  time  for  any 
offense,  yet  it  remains  true,  judged  either  by  earlier  or  by 
later  standards,  that  such  wholesome  restraints  were  scarcely 
to  be  expected  at  that  time. 

Sec.  4  and  5.  ''For  herbergage"  (lodging).  These  sections, 
which  are  primarily  a  part  of  military  law,  show  that  the  quarter- 
ing of  troops  upon  the  inhabitants,  if  done  at  all,  must  be  done  in 
an  orderly  manner  and  by  the  proper  officers.     It  would  appear 


From  Justinian  to  the  Publicists  25 

from  the  nature  of  the  penalty  that  only  the  knights  might  be  so 
lodged.  A  later  section,  (Sec.  32),  assigns  a  penalty  for  the  rob- 
bing and  pillaging  of  lodgings. 

Sec.  8.  ''For  robbyng  of  merchaunts  commyng  to  the  market.'' 
The  robbing  of  merchants  in  time  of  peace  was  a  mediaeval  pastime 
very  much  in  vogue.  That  it  should  have  been  prohibited  in  time 
of  war  is  probably  to  be  accounted  for  primarily  as  affording  a 
means  of  securing  supplies  without  foraging.  This  at  least  seems 
implied  in  the  especial  mention  of  "vitaillers,"  i.  e.  grocers,  and 
further  prohibition  of  robbery  of  "horsmete"  and  "mannysmete" 
(i.  e.  provender  and  foodstuff). 

Sec.  16.  "For  the  paying  of  ihriddes."  This  section  requires 
every  man,  whether  soldier  or  camp-follower,  to  pay  to  his  "cap- 
tain, lord,  and  maister"  one-third  of  "alle  manere  wynning  by 
werr".  This  may  be  understood  as  applying  to  earnings  only,  in- 
cluding the  ransom  money  for  prisoners ;  for  it  would  scarcely  agree 
with  Sec.  26,  (to  be  considered  later)  to  suppose  that  it  could  mean 
a  permission  to  pillage  upon  the  payment  of  a  third  of  the  spoil 
to  the  general  exchequer. 

Sec.  39.  "For  iheim  that  he  wastours  of  vitaille."  This  is  the 
only  section  which  seems  to  permit  pillage.  "If  any  man  fynde 
wyne  or  any  other  vitaill,  that  he  take  himself  thereof  as  moche 
as  hym  nedes,  and  that  he  save  the  remenaunt  to  other  of  the  oste 
withoute  any  distruccion  upon  peyn",  etc.  But  the  thing  which 
might  be  taken  was  regarded  as  a  necessity  and  wanton  destruction 
thereof  was  prohibited.  This  may  be  reconciled  with  paragraph 
26  upon  the  supposition  that  it  applies  to  a  country  not  yet  com- 
pletely occupied.  Or,  if  so  occupied,  it  might  be  construed  as  a 
military  necessity  supplementary  to  the  regular  commisariat, 
according  to  the  policy  that  a  country  should  support  the  invad- 
ing army,  a  policy  not  now  sanctioned. 

Sec.  37.  "For  brennyng."  "Also  withoutyn  commandement 
speciall  of  the  Kyng  that  noman  brenne  (bum)  upon  peyn  off 
death."  The  purpose  of  this  is  apparent  without  comment;  viz, 
to  secure  the  country  from  devastation  by  fire. 

Sec.  33.  "A  statute  for  theim  that  lette  labourers  and  men  gayng 
to  plough.''  Industry  was  to  be  left  undisturbed.  Not  even  the 
needs  of  the  army  for  horses  might  be  satisfied  by  pillage — as  good 
proof  as  could  be  given  of  an  invader's  intention  to  disturb  the 
coimtry  as  little  as  possible. 


26  Belligerent  Occupation 

Sec.  28.  "A  statut  for  childrep-  within  the  age  of  XIII I  years." 
Children  under  fourteen  years  of  age  were  to  be  unmolested;  but 
"if  (unless)  he  be  a  lordes  son  or  elles  a  worshipful!  gentilmans 
son,  or  a  capne,  etc.,"  in  which  case  he  might  beheld  for  ransom. 

Sec.  34.  "For  theint  that  gyve  men  reproche."  It  is  worth  noticing 
that  this  section,  whose  chief  design  was  probably  to  secvire  good 
discipline  among  his  own  troops  mentions  also  the  "Frenshe"  as 
well  as  the  "Englissh,  Walsh,  or  Irissh."  Nothing  is  easier  than 
for  trouble  to  arise  out  of  a  taunt  or  a  jest  when  the  passions  of 
men  are  inflamed,  and  nothing  is  more  tempting  to  a  soldier  of  the 
victorious  invading  army  than  to  indulge  a  natural  propensity  to 
exchange  a  jeer  or  a  jest  with  their  late  opponents.  The  weight 
of  the  argimient  of  force  being  on  the  side  of  the  invaders  the  re- 
straint of  speech  that,  "no  vilony"  be  said,  should  be  placed  es- 
pecially upon  them. 

Sec.  26.  Comment  upon  this  section  has  been  reserA'ed  till  the 
last;  for,  more  than  any  other,  this  section  recognizes  the  differ- 
ence between  surrendered  territory  and  that  which  is  still  hostile. 
We  know  in  this  that  the  king  had  in  mind  a  concept  of  territory 
which,  while  subject  to  his  own  arms  and  authority  owed  alleg- 
iance to  a  former  sovereignty,  which  allegiance  could  only  be 
broken  by  subsequent  agreement  between  sovereignties.  The 
passage  should  be  quoted  verbatim: 

"For  kepyug  of  the  cuntre."  "Also  if  any  cuntre  or  lordship 
be  wonne  other  by  fre  wille  offerd  unto  the  Kyuges  obeissaunce, 
that  noman  be  so  hardy  to  robbe  nor  pile  therin  aftyr  that  the 
peas  is  proclaimed,  upon  peyn  of  deth.  And  if  eny  man  of  what 
degre  soever  he  bee,  come  unto  our  saide  lordes  obeissaunce,  that 
noman  take  hym,  robbe  hym  nor  pile  hym  upon  the  same  peyn, 
so  that  he  or  thay  that  this  wolle  obbeye,  here  a  token  of  our  sover- 
ayn  lorde  the  king." 

Let  us  dwell  for  a  moment  upon  the  significance  of  this  passage 
to  the  development  of  belligerent  occupation. 

The  Romans,  it  will  be  remembered,  never  conceived  in  their 
legal  theories  of  a  distinct  stage  in  military  operations  wherein  the 
land  and  the  people  were  exempt  from  the  harsh  conditions  of  war, 
except  as  an  act  of  grace  on  the  part  of  the  commander.  A  nation 
at  war  with  them  was  at  war  as  a  whole,  and  as  long  as  the  war 
lasted,  and  no  part  was  entitled  to  exemption  on  the  ground  of  its 
being  quasi  subject  to  them.     The  doctrine  of  postliminium  was  a 


From  Justixian  to  the  Publicists  27 

part  of  their  civil  code  and  its  application,  as  a  matter  of  right 
belonged  to  Roman  citizens  or  property,  returning  to  Roman  sover- 
eignty. As  to  what  would  happen  the  case  being  reversed,  the 
law  was  silent ;  for  it  had  no  authority  to  speak.  Contrasting  with 
the  case  under  consideration,  we  see  in  the  latter  an  approach  to 
the  modem  international  status  of  occupation  from  another  stand- 
point, with  a  distinct  gain  in  certain  particulars. 

In  the  first  place,  the  standpoint  is  that  of  the  commander  in 
his  actual  experience.  It  rests  upon  no  previous  legislation  and 
is  not  meant  to  conform  to  an  existing  jurisprudence.  In  this  it  is 
thoroughly  EngHsh,  and  in  harmony  with  the  EngUsh  attitude  to- 
ward international  law  as  a  thing  purely  occasional  in  origin.  It 
was  not  announced  as  a  national  policy  to  which  England  would  be 
willing  to  be  bound  in  the  future,  for  it  was  intended,  so  far  as  we 
know,  to  apply  to  this  one  war  only.  It  therefore  lacks  continuity 
both  as  a  legal  theory  and  as  a  national  policy.  Does  it  therefore 
lack  permanence  and  value  ?  On  the  contrary,  both  as  an  instance 
of  humanitarian  usage,  and  as  an  approach  to  the  actual  status  of 
occupation  in  the  international  law  of  today,  it  surpasses,  not  only 
Roman  usage,  but  the  revived  Roman  legal  concepts  of  the  time 
of  Grotius,  two  centuries  later.  It  is  but  reasonable  to  suppose 
that  such  a  document  would  have  an  appropriate  degree  of  in- 
fluence upon  English  war  practice,  though  upon  this  point  we  can 
offer  nothing  stronger  than  inferential  evidence.  ^  While  we  do  not 
find  it  quoted  or  reaffirmed  specifically  by  later  sovereigns  or  com- 
manders it  is  worthy  of  notice  that  in  the  Hundred  Years  War 
just  prior  to  this,  the  triumph  of  the  arms  of  Edward  II.  in  France 
was  marked  by  the  slaughter  of  the  unarmed  and  the  wasting  of 
the  country  as  an  ordinary  occurrence.  Still  further  back  the  war 
practice  of  Edward  I.  presents  the  acme  of  cruelty.  On  the  other 
hand,  following  the  time  of  Henry  V.,  such  instances  of  indiscrim- 
inate and  inhuman  warfare  are  sporadic  rather  than  customary. 

Now  while  it  would  probably  be  too  much  to  attribute  the  milder 
usage  following  Henry  V.'s  time  to  the  influence  of  the  "Ordi- 
nances", it  is  not  too  much  to  claim  that  a  rapidly  improving  usage 
found  its  highest  expression  in  them,  the  like.of  which  continental 
Europe  had  never  known.  England's  geographical  and  political 
isolation  gave  opportunity  for  the  advancement  in  military  usage 
which  the  Ordinances  indicate,  to  the  extent,  at  least,  of  three 
hundred  years. 

*  The  writer  follows  Twiss  in  rejecting  the  ordinances  credited  to  Rich- 
ard II.  and  to  Henry  IV. 


28  Belligerent  Occupation 

Whether,  then  as  cause  or  efifect  of  the  advanced  development 
of  English  military  usage,  it  is  evident  that  the  Ordinances  are  in- 
dicative of  such  development,  and  that  if  we  are  debtors  to  the 
Romans  for  the  origin  of  the  legal  status  we  are  debtors  to  the 
English  for  the  first  specific  instances  of  occupation — antedating 
by  several  centuries  the  completed  legal  development — and  for  the 
milder  measures  of  warfare  introduced  at  so  early  a  date. 

Lest  it  be  thought  that  we  are  forgetting,  it  should  be  added 
that  in  carrying  on  actual  hostilities  Henry  resorted  to  the  savage 
measures  of  his  time.  The  memorable  siege  of  Rouen  (1417)  in 
the  year  before  the  Ordinances  were  issued,  where  the  most  pitiful 
scenes  of  war  were  enacted  in  the  starvation  of  the  non-combatant 
population  outside  the  walls  between  besiegers  and  besieged ;  like- 
wise the  siege  of  Monteran  only  the  year  afterward  (1420),  bear 
abundant  testimony  to  the  severity  of  war  when  it  was  open  war 
rather  than  occupation.  But  this,  it  is  superfluous  to  say,  only 
emphasizes  the  distinction  he  drew  between  occupied  and  unoc- 
cupied territory — a  distinction  in  fact,  for  which  he  had  no  term. 
Moreover,  he  might  possibly  have  justified  his  extreme  measures 
upon  the  ground  of  military  "necessity" — that  dangerously  ex- 
pansive term — just  as  much  more  modem  commanders  would 
have  done.  After  all,  the  chief  point  of  interest  is  that  he  was 
humane  enough  and  had  soldierly  common  sense  enough  to  issue 
the  Ordinances  long  before  usages  had  grown  mild  to  such  a  de- 
gree as  to  abandon  the  harsh  measures  of  actual  warfare  dis- 
played at  the  siege  of  Rouen. 

It  remains  to  notice  one  other  instance  which  approaches  in 
some  particulars  the  status  of  occupation,  and  which  brings  us 
down  to  the  close  of  this  period.  It  is  that  of  the  conduct  of 
Gustavus  Adolphus  during  the  Thirty  Years  War.  Previous  to 
setting  out  on  this  memorable  campaign  he  caused  to  be  prepared 
(1621)  a  series  of  military  regulations  called  "Articles  of  War".^ 
The  purpose  of  these  articles  was  to  cultivate  a  good  morale  among 
the  troops,  by  the  regulation  of  attendance  upon  devotional  ex- 
ercises, the  prohibition  of  drinking,  swearing,  carousing  and  the 
"worship  of  false  gods"  (images,  crucifixes,  etc.),  the  punishment 
of  cowardice,  and  the  establishment  of  a  court  corresponding  to 

'"Many  of  the  best  principles  thus  put  together  are  to  be  found  in  the 
Swedish  Army  Regulations  of  Gustavus  Adolphus".  See  Taylor,  Internat- 
ional Law,  p.  471.  This  is  incorrect,  as  an  examination  of  those  Regulations 
will  show. 


From  Justinian  to  the  Publicists  29 

that  of  the  modem  judge  advocate.  It  will  be  observed  that  this 
has  nothing  to  do  with  the  personal  and  property  rights  of  non- 
combatants,  and  therefore,  strictly  speaking,  has  nothing  to  do 
with  belligerent  occupation.  Moreover,  the  country  in  which 
these  operations  were  conducted  was  not  always  hostile — ^not  the 
territory  of  the  enemy.  The  case  is  deserving  of  mention,  how- 
ever, both  in  justice  to  the  commander  because  it  contrasts  so 
vividly  with  contemporary  usage,  and  because  it  is  an  instance  of 
the  mildest  usage,  at  the  close  of  the  period  under  consideration. 
What  Gustavus  thought  of  the  rights  of  non-combatants  we  get 
from  a  speech  he  is  reported  to  have  made  at  Nuremberg,  where 
he  found  it  necessary  to  rebuke  with  great  severity  his  marauding 
German  allies.     Thus  it  runsr^ 

"You  princes,  lords  and  gentlemen,  and  you,  my  generals,  lieu- 
tenant generals,  and  all  you  my  inferior  officers,  I  have  ever  es- 
teemed you  for  brave  cavaliers,  and  I  bear  you  witness  that  upon 
all  occasions  of  service  offered  you  have  in  battle  given  me  suffi- 
cient demonstration  of  your  valor.  But  wh^n,  having  you  all  here 
before  me,  I  am'  put  in  remembrance  of  your  ravages,  robberies 
and  plunderings,  and  that  you  yourselves  are  guilty  of  these 
atrocities,  my  hair  stands  up  on  end  with  horror.  Let  yourselves 
be  judges.  Is  it  not  a  doleful  and  lamentable  case,  yea,  most  odious 
in  the  sight  of  Almighty  God,  that  one  Christian  should  pillage 
another? — one  friend,  nay  one  brother — should  ransack,  spoil  and 
undo  another  ?  The  very  devils  in  hell  are  more  loving  and  trusting 
one  to  another,  than  you  Christians  are  among  those  of  your  own 
country." 

After  thus  expressing  his  horror  at  their  conduct  he  next  excul- 
pates the  Swedes  and  brings  the  charge  directly  home  to  the  Ger- 
mans, then  continuing: — 

"You  will  say,  perchance,  that  you  want  money.  But  when 
I  have  the  means  to  satisfy  you,  and  you  by  pillaging,  robbing 
and  plundering  deprive  me  of  those  means,  whose,  I  ask  you,  is 
the  fault  that  you  are  not  satisfied?  What  share  have. I  at  any 
time  received  out  of  all  your  plunder?  I  do  protest  before  God 
that  I  have  not  by  all  this  war  enriched  myself  to  the  value  of  a 
pair  of  boots,  and  I  declare  withal  that  I  would  rather  ride  with- 
out boots  than  make  myself  the  richer  by  the  plunder  and  the  ruin 
of  these  poor  people This  is  all  that 


^Hosack,  Law  of  Nations,  p.  205. 


V 


30  Belligerent  Occupation 

henceforth  I  shall  desire  at  your  hands,  that  you  spoil  not  others 
of  their  goods,  but  leave  to  every  man  his  own  possessions.  The 
choler  and  the  manhood  that  you  have,  score  it,  in  God's  name, 
upon  the  fronts  of  your  enemies,  but  stain  not  the  honor  of  a 
soldier  by  outraging  unarmed  innocence.  Live  upon  your  means 
like  soldiers  and  not  by  pilfering  and  spoiling  like  highway  robbers. 
This  if  you  do  not  you  shall  ever  be  infamous  and  I  with  such 
help  shall  never  be  victorious."^ 

Needless  to  say  that  as  long  as  Gustavus  lived  the  Swedish  army 
was  a  model  of  discipline,  but  after  his  fall  at  the  battle  of  Lutzen 
it  rapidly  sank  to  the  level  of  its  marauding  allies  and  enemies. 
It  was  in  the  midst  of  the  terrible  carnage  and  devastation  of  the 
Thirty  Years  War  that  the  work  df  Grotius  appeared,  a  copy  of 
which  Gustavus  is  said  to  have  carried  with  him  in  the  later  years 
of  his  campaigns.  It  is  the  work  of  Grotius,  his  predecessors  and 
his  successors,  that  we  have  next  to  consider. 

IV 

THE  PUBLICISTS 

"No  more  novel  or  difficult  problem  was  ever  presented  for  solu- 
tion," says  a  recent  writer, ^  "than  that  which  confronted  the  pub- 
licists of  the  sixteenth  and  seventeenth  centuries,  when  they  were 
called  upon  to  furnish  rules  adequate,  by  virtue  of  their  intrinsic 
weight  and  dignity,  to  compel  the  obedience  of  the  freshly  eman- 
cipated European  nationalities,  without  the  coercive  force  of  any 
recognized  central  authority."  This  could  be  true  only  in  an  an- 
ticipatory sense,  for  the  "emancipation"  cannot  be  said  to  have 
been  accomplished  until  the  close  of  the  Thirty  Years  War  (1648) 
while  the  work  of  the  publicists — the  earlier  ones,  at  least — had 
already  been  summed  up  in  the  great  work  of  Grotius  which  ap- 
peared in  1625.  Yet  the  statement  is  to  be  credited  in  spite  of 
the  apparent  "hysteron  proteron,"  for  thinking  men  had  long  per- 
ceived that  no  Roman  Empire,  real  or  imaginary,  temporal  or 
spiritual,  could  ever  again  govern  the.  destinies  of  Europe.  An 
appeal  to  reason,  to  virtue,  to  Christian  sentiment,  to  supposed 
"natural  laws"  of  right  conduct,  and  especially  to  the  laws  of  an- 

^Gustavus  not  only  protected  the  people  from  violence,  but  he  gave  or- 
ders that  the  full  market  price  should  be  paid  for  all  provisions  that  were 
brought  into  his  camp." — Hosack,  Law  of  Nations,  p.  195. 

'Hannis  Taylor  in  North  American  Review,  March  1902. 


/ 


The  Publicists  31 

cient  Rome,  furnished  the  basis  of  the  new  modus  vivendi  for  the 
states  of  Europe.  This  was  undoubtedly  the  controlHng  purpose 
with  Grotius  if  not  with  his  predecessors,  and  the  success  of  his 
effort  is  seen  in  the  influence  he  exerted  at  the  Peace  of  "West- 
phalia, in  the  recognition  of  the  principle  of  equality  of  states. 

But  there  was  another  purpose,  which  was  more  immediate  if 
not  so  comprehensive.  Europe  was  at  this  time  witnessing  a  war 
which  for  savage  ferocity  and  heedless  destruction  of  life  and  prop- 
erty is  unsurpassed  by  any  within  the  range  of  definite  knowledge. 
It  is  difficult  to  speak  of  the  cruelty  of  the  Thirty  Years  War  ex- 
cept in  superlatives.  The  military  usage  was  so  sickening  by  the 
excess  of  its  mahgnity  that  it  produced  a  revulsion  of  feeling,  a 
satiety  of  suffering,  and  men  cast  about  for  reasons  for  restraining 
the  cruelties  of  war.  As  the  publicists  appealed  to  Roman  law 
for  other  international  purposes,  so  they  appealed  to  Roman  mil- 
itary usage,  stern  as  it  was  compared  with  modern  standards, 
but  gentle  and  humane  compared  with  that  which  they  saw. 

Hence,  in  taking  up  the  work  of  the  publicists  we  are  resuming 
the  line  of  development  of  our  subject  where  the  Romans  left  it 
some  eleven  hundred  years  before.  True,  the  "canonists"  had  in 
the  meantime  appealed  to  the  same  source,  and  the  body  of  the 
Roman  law  as  it  left  their  hands  comprised  the  courses  in  law  as 
taught  in  the  mediaeval  universities.  But  whatever  may  have 
been  the  attitude  of  the  earlier  publicists  toward  the  canonists, 
Grotius  said  of  them  quite  significantly,  "While  they  are  good  au- 
thorities for  making  new  laws  they  are  bad  interpreters  of  laws 
already  made."^  Hence  he  goes  back  to  the  Codex  of  Theodo- 
sius  and  the  Pandects  of  Justinian — sources  for  which  he  confesses 
"great  deference".     It  is  no  injustice  to  the  other  publicists^  to 

'Grotius — Prolegomena  (p.  LXXV)  to  De  Jure  Belli  ct  Pacis. 

^The  most  distinguished  of  the  publicists  (for  others  see  Grotius,  Pro- 
legomena) were  as  follows: 

Franciscus  a  Victoria  (1480-84)  born  at  Navarre,  educated  at  Paris, 
Professor  at  the  University  of  Salamanca,  one  of  the  foremost  of  the  pre- 
decessors of  Grotius. 

Balthazer  Ayala  (1548-84)  Judge  Advocate  of  the  Spanish,  army  in  the 
Netherlands. 

Suarez  (1584-1617)  Professor  at  Alcala  and  Salamanca. 

Albericus  GentiUs  (1552-1608)  born  in  Italy,  educated  at  Perugia,  fled 
to  England  to  escape  religious  persecution,  became  Professor  of  Civil  Law 
at  Oxford  University  in  1582. 

Richard  Zouch  (1590-1660)  successor  to  GentiUs  at  Oxford. 

Hugo  Grotius  (1553-1645)  born  at  Delft  in  Holland,  educated  at  Leyden 
and  Orleans,  involved  in  the  fall  of  the  Grand  Pensionary,  condemned  to  life 
imprisonment  and  confiscation  of  his  goods,  escaped  to  Paris  where  he  wrote 
his  great  treatise. 


32  Belligerent  Occupation 

allow  Grotius  to  be  the  spokesman  for  them  and  their  times,  first, 
because  of  the  comprehensiveness  and  completeness  of  his  work, 
De  Jure  Belli  et  Pacis,  a  work  which  procured  for  him  the  title  of 
"Father  of  International  Law,"  and  second,  because  coming  after 
them  in  point  of  time  there  was  opportunity  for  him  to  summar- 
ize all  that  was  of  value  in  the  earlier  works.  It  \vill  be  quite 
sufficient  therefore  to  examine  this  treatment  of  our  subject  in  the 
work  mentioned,  with  incidental  notice  of  the  contributions  of  his 
•    predecessors. 

Before  taking  up  this  examination,  however,  it  seems  necessary 
to  pause  and  consider  a  matter  which  might  have  been  treated  in 
the  introduction,  but  has  been  reserved  until  the  present  for  reas- 
ons which  will  appear  later. 

In  treating  belligerent  occupation  as  a  development  several  as- 
pects thereof  are  to  be  distinguished.  Two  of  these  have  already 
been  mentioned,  namely,  military  usage  and  legal  status.  Two 
more  may  be  distinguished  at  this  point,  regarding  the  matter 
sociologically;  namel>,  first  the  social  attitude,  which  changes  as 
a  rule  so  very,  very  slowly,  or  else  spasmodically  in  a  revolution, 
whose  voice,  when  it  has  a  voice,  is  what  we  call  public  opinion; 
and  second,  the  enlightened  convictions  of  the  solitary  leaders  and 
thinkers  among  men,  such  as  Cyrus,  Cato,  Belisarius,  Abu  Bekr, 
Alfred,  Henry  V.,  Grotius,  Gustavus  Adolphus,  and  Lincoln.  Of 
these  it  can  scarcely  be  said  that  there  is  a  development.  The 
great  man  is  not  so  much  dependent  upon  his  social  environment 
for  his  moral  concepts  as  society  is  indebted  to  him ;  wherefore  he 
seems  to  appear  indifferently  in  any  age.  Social  advancement,  on 
the  other  hand,  is  a  tardy  and  a  painful  progress,  but  it  is  seldom 
either  fitful  or  retrogressive.  Military  usage,  again,  does  not  nec- 
essarily conform  to  social  advancement.  Indeed  it  is  apt  to  follow 
the  latter  rather  tardily,  as  it  did  in  the  Thirty  Years  War,  since 
they  who  customarily  formulate  it  are  of  military  profession  and 
naturally  have  military  necessity  uppermost  in  mind.  One  has 
but  to  compare  the  works  of  jurists,  publicists,  and  soldiers  of  the 
present  day  to  see  how  persistently  the  professional  point  of  view 
thrusts  itself  forward. 

It  is  evident  from  the  foregoing  that  these  several  aspects  of  de- 
velopment do  not  proceed  pari  passu;  no  more  do  they  present  a 
continuity  in  an  upward  direction,  nor  in  any  direction.  Never- 
theless, that  the  direction,  though  discontinuous,  is  upward,  both 


The  Publicists  33 

severally  and  collectively,  does  not  admit  the  shadow  of  a  doubt. 
If  an  order  of  advancement  may  be  assigned  it  would  be  as  follows, 
first  the  publicist,  then  the  jurist,  then  the  soldier.  That  this  is 
not  always  true  is  seen  in  the  case  of  the  Ordinances  of  War  of 
Henry  V.,  where  undoubtedly  the  soldier  established  a  military 
usage  which  quite  put  the  rest  in  the  rear. 

In  the  work  of  Grotius  we  see  these  several  phases  of  the  question 
at  war  with  each  other,  as  it  were,  in  the  attempt  of  a  great  mind 
to  reconcile  legal  status,  belated  military  usage,  awakened  public 
opinion,  and  high  moral  ideas  of  his  own,  and  to  evolve  in  the 
process  a  standard  which  would  win  its  way  to  international  ac- 
ceptance by  not  being  too  much  estranged  from  the  usage  of  the 
day  nor  too  severe  for  the  immediate  future.  It  is  now  in  order 
to  examine  it  as  far  as  it  concerns  our  subject. 

As  might,  be  supposed,  the  nearest  approach  which  Grotius 
makes  to  a  perception  of  that  which  we  call  belligerent  occupation, 
is  in  dealing  with  postliminium.  Having  discussed  the  rights  of 
individuals  in  this  connection  he  turns  to  the  rights  of  a  people. 
Unfortunately  the  distinction  between  people  and  state  had  not 
yet  been  clearly  drawn,  or  at  least  as  but  vaguely  perceived  by  him. 
This  distinction  is  vital  to  the  subject.  A  state  which  is  unable 
to  exert  its  authority  over  all  its  territory,  due  to  the  presence 
of  the  enemy,  is  not  to  be  confounded  with  the  people,  some  of 
whom  are  still  subject  to  its  authority  and  some  to  that  of  its  ad- 
versary. Again,  a  war  is  a  contest  between  states,  not  peoples, 
and  for  the  prosecution  of  the  war,  the  two  arms  of  the  service, 
the  army  and  the  navy,  are  employed  by  the  state.  A  state  guar- 
antees its  citizens  in  their  civil  and  political  rights,  including  the 
possession  of  property,  in  return  for  the  allegiance  of  the  citizen. 
That  part  of  a  people  which  has  been  cut  off  from  the  authority 
of  the  state  by  means  of  occupation  still  owes  allegiance  to  the 
state  to  which  it  belongs,  though  unable  to  obey  it.  Conversely 
the  state  continues  to  guarantee  the  property  rights  of  such  citizens, 
and  this  relationship  between  the  state  and  the  conquered  part 
of  the  nation  is  recognized  and  sanctioned  by  the  invading  state. 
In  modem  usage  the  civil  law  of  the  parent  state,  or  government 
de  jure  is  permitted  to  remain  in  full  operation,  the  invader  de- 
claring himself  the  administrator  thereof.  Needless  to  say  he  is 
an  administrator  with  large  powers  of  discretion,  but  the  import- 


34  Belligerent  Occupation 

ant  point  is  that  he  does  not  seek  to  substitute  the  law^  of  his  own 
country  for  those  of  the  government  de  jure — not  until  the  treaty 
of  peace. 

Let  us  see  how  near  Grotius  came  to  a  realization  of  such  a  sit- 
uation. The  passage  above  referred  to  is  as  follows:*  "Quod  de 
singulis  personis  di.ximus,  idem  et  in  populis  locum  habere  arbitror, 
pt  qui  liberi  fuerunt  suam  reciperant  libertatem  si  forti  eos, 
vis  socionmi  eximat,  hostili  imperio.  At  si  ipsa  multitudo  quae 
civitatcm  constitucrat  dissoluta  sit,  verius  puto  non  eundem  po- 
pulum  censeri,  nee  postliminio  res  restitui  ipso  gentiimi  jure,  quia 
populus,  ut  navis,  partium  dissoliitione  plane  interit,  eo  quod  tota 
ejus  natura  in  ilia  perpetua  conjunctione  consistit.  Non  ergo  quae 
fuerat  Sagunti  ci vitas  eadem  exstitit,  cum  veteribus  cultoribus 
ea  sedes  octavo  post  anno  restituta  est",  etc. 

In  another  passage  to  a  similar  effect  (III,  IX,  12)  he  says:^ 

"Ilia  quaestio  magis  ad  nos  pertinet,  an  et  populi  qui  subjecti 
alieno  imperio  fuerunt  in  veteram  causem  recedant  quod  tractari 
potest  si  non  is  cujus  imperium  fuerat,  sed  sociorum  aliquis  eos 
hosti  eripuisset;  puto  hie  idem  dicendum  quod  in  servis,  nisi  sociali 
federe  aliter  convenerit." 

In  the  first  of  the  above  passages  the  illustration  of  the  ship  is 
a  correct  analogue  for  the  state  as  opposed  to  the  people,  and  it 
exemplifies  the  confusion  arising  from  a  want  of  terminology.  In 
such  a  case  it  is  the  state  which  perishes  outright,  and  the  will  of 
the  invader  becomes  paramount.  Conversely,  if  they  are  able  of 
themselves  or  with  the  help  of  their  allies  to  drive  out  the  invader 
the  people  regain  their  former  status.     In  the  latter  case,  however, 

'What  we  have  said  of  individuals,  I  conceive,  holds  also  for  people;  so 
that  they  who  have  been  free  recover  their  liberty  if  it  happen  that  the  force 
of  their  friends  extricate  them  from  the  power  of  their  enemies.  But  if  the 
multitude  which  had  constituted  the  state  or  city  be  dissolved,  I  conceive  it 
to  be  more  true  that  it  is  not  to  be  reckoned  the  same  people,  and  that  their 
condition  is  not  restored  by  postliminium,  by  the  law  of  nations;  for  a  people, 
like  a  ship,  by  the  dissolution  of  its  parts,  perishes  outright,  since  its  whole 
nature  consists  in  the  continuity  of  its  composition. 

Grotius,  De  Jure  Belli  et  Pacis,  Vol.  Ill,  ch.  ix,  p.  9.  WheweU's  trans- 
lation. 

^"Another  matter  belongs  more  to  us;  whether  a  people  which  has  been 
subject  to  another  authority  returns  to  its  former  condition  (by  postlim- 
ium).  This  may  be  so  construed  if  they  were  rescued  from  the  enemy 
by  some  of  their  allies  but  not  if  by  that  power  to-  which  they  owed  alleg- 
iance. I  think  the  same  is  to  be  said  here  as  in  the  case  of  slaves,  unless 
there  is  something  otherwise  in  the  bond  of  allegiance."  (What  was  said  in 
the  case  of  slaves  was  that  "they  are  recovered,  not  captured;  the  soldier  is 
their  defender,  not  their  owner.") 


The  Publicists  35 

as  is  implied  seemingly  in  the  second  passage  quoted,  the  help  of 
the  allies  may  involve  the  question  of  salvage.  The  fact  that  they 
do  regain  their  former  status  involves  the  continuance  of  their 
rights  of  possession  even  while  the  state  to  which  they  owed  al- 
legiance was  unable  to  guarantee  those  rights.  But  is  this  any- 
thing more  than  a  restatement  of  the  Roman  jus  civile'^  It  is,  in 
just  this  way :  that  whereas  the  jus  civile  was  laid  down  for  Roman 
citizens,  and,  as  was  said  before,  drawn  upon  by  the  praetor  pere- 
grinus,  this  principle  may  have  been  employed  in  other  cases  than 
those  concerning  Roman  citizens  in  late  Roman  times.  But  here 
we  find  it  avowedly  set  forth  as  a  principle  to  be  followed  in  law 
and  usage  by  all  states  internationally.  The  amount  of  it  is  the 
recognition  of  the  obligation  of  the  state  to  the  citizen,  and  the 
continuance  thereof  under  hostile  occupation.  It  is  significant  to 
notice  also  that  this  has  been  done  notwithstanding  a  lack  of 
terminology,  which  would  have  greatly  simplified  the  reasoning. 
Turning  next  to  property  rights,  and  first  of  all  to  land,  Grotius 
puts  the  recovery  of  title  to  the  original  possessor  at  the  time  of 
expulsion  of  the  enemy,  which  might  mean  at  the  treaty  of  peace 
closing  the  war,  as  he  seems  to  imply  in  his  illustrations.  That 
this  is  not  a  necessary  conclusion  is  supported  by  another  passage, 
which  because  of  its  importance  to  the  subject  must  be  quoted 
verbatim.  It  runs  as  follows:  "At  agri  non  statim  capti  intel- 
liguntur  simul  atque  insessi  sunt ;  nam  quam-quam  verum  est  eam 
agri  partem  quam  cum  magna  vi  ingressus  est  exercitus  ab  eo  in- 
terim possideri,  ut  a  Celsu  notatum  est;  tamen  a^^um  quem  tract- 
amus  effectum  non  sufiicit  qualiscunque  possessio,  sed  firma  re- 
quiritur.  Itaque  Romani  agrum  extra  portam,  quam  Annibal 
castris  insidebat,  adeo  non  amissum  judicabant,  ut  eo  ipso  tempore 
nihilo  minoris  venierit  quam  ante  venisset.  Is  ergo  demum  agar 
captus  censebitur,  qui  mansuris  munitionibus  ita  includitur,  ut 
nisi  iis  expugnatis  parti  alteri  palam  aditus  non  sit."* 

'De  Jure  Belli  et  Pads  III,  iv,  4.  "But  the  lands  are  not  understood 
to  be  captured  as  soon  as  they  are  occupied.  For  though  it  is  true  that  the 
part  of  the  land  which  an  army  has  entered  upon  with  a  great  force  is  for  the 
time  in  its  possession,  as  Celcus  notes;  yet  for  the  effect  of  which  we  speak, 
possession  of  every  kind  is  not  sufficient,  but  firm  possession  is  required. 
Thus  the  Romans  were  so  far  from  judging  the  land  on  which  Hannibal  had 
planted  his  camp  to  be  lost  that  at  that  very  time  it  sold  for  no  less  than  it  had 
sold  before.  That  land,  then,  is  to  be  conceived  as  captured,  and  no  other 
which  is  included  in  permanent  defenses,  so  that  it  is  very  evident  there  is 
no  access  to  it  till  these  are  carried."  Whewell's  translation,  Vol.  Ill, 
p.  112. 


36  Belligerent  Occupation 

This  shows  very  clearly  that  an  intermediate  condition  was  re- 
cognized between  firm  possession  and  mere  occupation;  between 
the  sovereignty  of  the  government  de  jure  and  the  tentative  pos- 
session by  the  government  de  facto.  The  development  of  the  idea 
of  occupation  had  proceeded,  so  far  as  the  territory  was  concerned, 
almost  to  its  present  condition.  The  outlines  of  the  whole  sub- 
ject, it  might  be  said,  were  dimly  perceived  and  presented,  the  de- 
tails were  yet  to  be  filled  in.  But  it  is  a  case  where  the  details 
outweigh  the  importance  of  the  outline,  for  they  involve,  first,  the 
distinction  between  combatants  and  non-combatants — a  distinc- 
tion that  had  not  yet  been  made  in  international  law — and  second, 
the  exemption  of  private  movable  property  from  capture.  The 
first  of  these  follows  very  shortly  after  Grotius,  and  the  second  is 
yet  to  be  secured  in  military  usage,  though  sanctioned  already  by 
international  law  and  public  sentiment.  The  further  exemption 
of  non-combatants  from  the  severities  of  war  and  the  reasons  there- 
for will  be  considered  later;  but  it  is  necessary  to  consider  next  the 
treatment  of  private  movable  property. 

^"Concerning  movables,  on  the  other  hand,"  says  Grotius, 
"the  contrary  rule  in  general  holds;  that  they  do  not  return  by 
postliminium,  but  become  prize.  Hence  objects  of  traffic  where- 
ever  bought,  become  the  property  of  him  who  buys  them;  and 
if  found  among  neutrals  or  brought  home,  cannot  be  claimed  by 
the  old  owner.  But  from  this  rule  were  excepted  formerly  mun- 
itions of  war,  the  reason  being,  apparently,  that  men  might  be 
more  active  in  ritovering  these." 

Here  we  go  back  to  ancient  usage  indeed.  It  has  been  stated 
before  that  public  property,  movable  or  immovable,  comes 
at  once  into  possession  of  the  captor  and  remains  as  long  as  he 
can  make  good  his  claim  by  force.  This  has  always  been  true  and 
doubtless  always  will  be,  the  only  modification  being  that  such 
property  is  not  to  be  abused  or  wantonly  destroyed;  that  places 
of  public  worship  are  to  be  respected,  and  that  works  of  art 
should  be  unmolested.  Again,  private  immovable  property, 
i.  e.  lands,  real  estate,  "returns,"  according  to  Grotius,  "to  the 
original  possessor  when  the  enemy  is  expelled."  That  is  to  say 
the  annullment  of  the  rights  of  ownership  of  the  inhabitants 
does  not  take  place  immediatly.  This  is  not  because  such  pro- 
perty  rights  are  regarded  as  more  sacred  than  those  of  mov- 
•De  Jure  Belli  et  Pads  III,  ix,  14. 


The  Publicists  37 

able  or  personal  property,  but  rather  because  the  capture  of 
immovable  property  is  the  act  of  the  whole  force  and  not  indi- 
vidual soldiers.  Contrasting  this  with  the  modem  view  we 
have  only  to  add  that  real  estate  never  leaves  the  possession  of 
the  original  owner  because  of  a  change  of  sovereignty.  It  is 
the  sovereignty  of  the  state  and  not  the  ownership  of  the  individ- 
ual which  returns  when  the  enemy  is  driven  out,  or  perishes 
when  he  succeeds.  Farmers  continue  to  own  their  fields,  there- 
fore, and  business  contracts  are  binding,  though  the  power  which 
guarantees  these  civil  relations  succumbs  and  another  takes  its 
place. 

But  when  we  come  to  private  movable  property — that  which 
is  most  easily  appropriated  and  least  easily  defended — we  have 
to  do  with  the  severest  sufferer  from  the  hardships  of  war 
aside  from  the  agencies  of  the  combat.  Today  the  word  of  the 
Hague  Conference  is  explicit  and  mandatory — ^  "Pillage  is  express- 
ly prohibited,"  a  prohibition  which  does  not  necessarily  extend 
to  firearms  and  ammunition;  but  when  Grotius  wrote,  pillage 
was  one  of  the  recognized  processes  of  war.  The  right  to  plun- 
der was  unquestioned,  no  matter  how  humane  a  Gustavus 
Adolphus  might  be.  Grotius  admits  that  it  is  justified  by  Nat- 
ural Law  and  by  the  Laws  of  Nations,  and  he  backs  it  up  further 
with  numerous  Scriptural  and  classical  illustrations.  "Not  only 
he  who  for  just  cause  carries  on  a  war,  but  anyone,  in  a  regular 
war,  may  without  limit  or  measure,  take  and  appropriate  what 
belongs  to  the  enemy.  "- 

This  was  Grotius,  the  scholar,  dealing  with  the  facts  of  history 
and  of  contemporary  usage.  These  he  could  not  state  otherwise 
than  as  he  found  them.  But  when  we  turn  to  his  "temperament- 
um  circa  vastationem  et  similia"  we  hear  Grotius,  the  man,  plead- 
ing for  a  clemency  which  he  dared  not  put  forth  as  law  or  usage. 
"Although,"  he  says,'  "it  is  not  a  part  of  our  purpose  to  speak  of 
the  advantages  of  any  course  of  conduct,  but  rather  to  restrain  the 
loose  license  of  war  to  that  which  is  lawful  by  nature,  or  among 
the  lawful  ways,  the  better;  yet  even  Virtue  in  this  age  little  es- 
teemed of  her  own  account,  ought  to  pardon  me,  if  I  try  to  make 

'It  should  be  added,  however,  that  this  is  another  instance  where  public 
sentiment  and  legal  precept  are  ahead  of  military  usage.  A  case  in  point  is 
that  of  the  pillaging  by  the  soldiers  of  the  united  powers  in  China  in  1900. 

"De  Jure  BeUi  et  Pacis,  III,  vi,  2. 

"Ibid,  III,  XII,  8. 


38  Belligerent  Occupation 

her  value  apparent  by  her  utility."  Then  he  points  out  that  "this 
moderation  in  preserving  things  which  do  not  effect  the  course  of 
war,  takes  away  from  the  enemy  that  great  weapon,  despair,"  since 
the  enemy  will  fight  with  the  greater  determination  when  they  see 
that  their  all  depends  upon  it.  Again,  "that  course  (moderation) 
presents  the  appearance  of  a  great  confidence  in  victory ;  and  that 
clemency  is  apt  to  bend  and  conciliate  men's  minds."  This  again 
he  supports  by  numerous  historical  instances  and  by  the  moral 
teaching  of  the  theologians.  He  commands  in  particular  a  number 
of  cited  cases  where  the  country  was  spared  because  the  conqueror 
expected  it  to  become  a  part  of  his  own  domain.  In  a  word,  if  we 
may  follow  the  opinion  of  many  in  ascribing  the  greatly  amelior- 
ated conditions  of  warfare  a  century  later  to  the  influence  of  Gro- 
tius,  that  influence  is  to  be  looked  for  in  his  "temperamenta." 

Taking  usage  as  he  found  it,  he  was  glad  enough  to  revert  to 
later  Roman  times,  assume  that  plunder  was  a  necessary  concom- 
itant of  war,  and  discuss  the  methods  of  capture  and  distribution. 
^"By  land",  he  says,  "the  common  use  everywhere  now  is,  that  in 
pillage  of  towns,  and  in  battles,  everyone  makes  his  own  what  he 
takes;  but  in  expeditions  for  booty  the  captures  are  common  to 
those  who  are  in  the  company,  and  are  divide4  according  to  their 
rank."  A  somewhat  similar  distinction  he  points  out  as  having 
been  observed  by  the  Greeks,  >.a(pupK,  or  public  spoil,  and  c-kiiIx, 
or  private  spoil,  the  latter  implying^  "what  was  taken  from  the 
enemy  during  the  contest;  the  former,  what  was  taken  afterwards." 
Continuing  he  says  that^  "what  soldiers  capture  when  not  on  duty 
or  on  service  to  which  they  are  ordered,  but  in  the  course  of  what 
they  do  by  promiscuous  right  or  by  permission,  is  forthwith  their 
own ;  for  they  do  this  not  as  public  servants.  Such  are  spoils  which 
they  win  from  an  enemy  in  single  combat,  and  such  as  they  take 
in  free  excursions  not  made  by  order,  at  a  distance  from  the 
enemy  (the  Roman  rule  was  ten  miles^ .  This  kind  of  capture  the 
Italians  at  present  call  correria,  plunder,  and  distinguish  it  from 
butina,  booty."  And  it  might  be  added,  it  is  this  kind  of  maraud- 
ing which  is  most  subversive  of  discipline,  exasperating  to  noncom- 
batants,  and  foreign  to  the  idea  of  belligerent  occupation. 

'De  Jure  Belli  et  Pads  III,  vi,  24. 
»De  Jure  Belli  et  Pads  III,  vi,  24. 
^aKvltla — despoiling  a  slain  enemy. 
»De  Jure  Belli  et  Pads,  III,  vi,  12. 


The  Publicists  39 

It  has  been  said  that  neither  in  form  nor  in  matter  did  Grotius 
contribute  anything  new  to  the  discussion  of  what  is  now  called 
international  law.  It  is  something,  however,  to  be  a  judicious 
compiler  and  editor.  But  Grotius  was  much  more  than  this.  A 
common  theme  with  that  of  his  immediate  predecessors  shows  a 
commonaHty  of  ideas,  the  inception  of  which  is  not  to  be  credited 
to  him  in  every  case  or  perhaps  in  the  majority  of  cases.  A  few  of 
these  it  may  be  well  to  notice. 

Victoria  had  maintained  that  it  never  was  lawful  to  slay  the  in- 
nocent intentionally,  or  to  spoil  them  of  their  property  if  it  could 
be  avoided.  "A  prince  ....  ought  not  to  wage  war  for  the 
destruction  of  the  people  against  whom  the  war  is  made,  but  for 
the  obtaining  of  his  rights."^  More's  Utopians  "do  not  waste  nor 
destroy  theire  enemies  lande  in  forraginges,  nor  they  burne  not  up 
theire  come."  "They  hurt  no  man  that  is  unarmed,  onless  he  be  an 
espiale."  "None  of  themselfes  taketh  anye  portion  of  the  praye." 
Gentilis,  to  whom  Grotius  confesses  himself  to  be  particularly  in- 
debted, in  dealing  with  the  treatment  of  the  persons  of  noncom- 
batant  enemies,  evidently  follows  the  legal,  that  is  to  say,  the  Ro- 
man view  in  regarding  them  all  as  enemies,  to  be  made  prisoners 
of  war  and  otherwise  dealt  with  much  as  those  under  arms.  He 
advises  clemency,  especially  to  young  boys  and  women.  "A 
long  line  of  fam.ous  commanders  unite  in  condemnation  of  attacks 
upon  female  honor."  As  to  the  treatment  of  property  he  gives 
only  a  qualified  approval  to  the  exemption  of  temples,  porticoes, 
statues,  etc.,  for  this,  he  thinks,  is  modified  too  much  by  changing 
circtmistances.  Concerning  private  property,  *  'the  victor  may  take 
to  himself  lands  and  other  property  of  the  enemy.  But  let  him 
remember  that  he  exercises  all  these  rights  pro  arbitrio  boni  viri." 
"When  a  state  passes  in  its  entirety  from  prince  to  prince,  it  passes 
cum  omnibus  suis  qualitatibus."  One  cannot  but  think  that  if  a 
sharper  distinction  had  been  drawn  between  sovereignty  and  own- 
ership, Gentilis  would  have  assigned  only  the  former  to  states, 
though  this  conviction  is  not  so  positive  as  in  the  case  of  Grotius. 
Further,  private  movable  property  is  subject  to  capture,  though 
the  exercise  of  the  full  legal  right  in  this  respect  should  be  restrained. 
Indeed  ^"policy  may  well. induce  a  victor  to  leave  to  the  con- 
quered complete  liberty In  all  cases  of  the  exercise  of  the 

^T.  A.  Walker,  p.  234,  History  of  the  Law  of  Nations 

>Ibid,  p.  289. 


40  B3LLI3ERENT  OCCUPATION 

victor's  rights,  equity  is  to  be  preferred  to  strict  law,  honor  to  bare 
utility."  It  is  the  spirit  of  the  teaching  of  Gentilis,  undoubtedly, 
as  much  as  the  content  of  his  work,  which  had  its  appropriate  in- 
fluence upon  Grotius. 

It  is  a  matter  of  regret  that  none  of  the  publicists  seem  to  have 
known  of  the  War  Ordinances  of  Henry  V.  A  concrete  case,  such 
as  this  would  not  only  have  been  eminently  worthy  of  quotation 
along  with  the  multitude  to  be  found  in  De  Jure  Belli  et  Pads;  more 
than  this,  it  would  have  thrown  a  great  deal  of  light  upon  the  prac- 
tical problems  of  a  commander  who  has  the  will  to  put  into  op- 
eration the  reforms  they  so  much  desired.  Consider  for  a  moment 
his  situation.  A  general  at  the  head  of  a  victorious  army  march- 
ing into  the  enemy's  territory,  that  enemy  fleeing  before  him  and 
powerless  to  oppose  his  approach,  the  country  with  its  defenseless 
population  and  tempting  wealth  all  about  him,  with  skulking  foes 
waylaying  his  pickets,  with  the  necessity  of  providing  for  thousands 
of  armed  men  who  m^ay  have  the  will,  as  they  have  the  power  to 
supply  their  own  wants  if  permitted  to  do  so — such  a  general  needs 
all  the  support  of  public  opinion,  the  established  military  usage  of 
the  most  humane,  the  guidance  of  enlightened  authorities,  the  re- 
straints imposed  by  judicial  decisions  and  legal  enactments,  in  a 
word,  needs  the  authority  of  international  law  to  prescribe  the  lim- 
its for  the  use.  of  force.  This,  moreover,  is  further  emphasized  by 
the  large  measure  of  disci'etionary  power  that  must  unavoidably  be 
conceded  to  him,  the  opinion  of  the  mass  of  uninformed  which 
would  make  him  a  dictator  rather  than  an  administrator,  the  weight 
of  historical  precedents  which  he  might  choose  according  to  his 
liking  and  especially  the  inexpediency  of  taking  him  to  task  for 
acting  unwisely  in  an  emergency,  in  a  word,  his  irresponsibility. 
It  is  an  easy  matter  for  a  publicist  to  say  what  ought  to  be  as  a 
matter  of  justice;  it  is  comparatively  easy  for  the  public  which  is 
interested  to  prescribe  its  own  exemption;  it  should  not  be  difficult 
for  the  jurist  and  legislator  to  derive  a  legal  status  in  conforming 
with  the  national  jurisprudence;  but  it  needs  a  commander  of  the 
type  of  Gustavus  Adolphus  or  Henry  V.  to  meet  such  an  emergency 
as  is  implied  in  a  situation  of  absolute  power  united  with  utter 
irresponsibility.  On  the  other  hand,  to  frame  a  definite  program 
of  action  needs  just  such  a  contingency  as  a  commander  must  face; 
for  it  must  necessarily  be  the  outgrowth  of  circumstances  and  not 
of  theorizing.     That  such  a  rudimentary  manual  was  already  in 


From  Grotius  to  Vattel  41 

existence,  and  had  been  for  two  hundred  years,  might  have  been 
pointed  out  by  Grotius,  much  to  the  support  of  his  own  contentions, 
even  though  he  could  not  have  maintained  that  it  was  established 
usage.  And  much  more  than  this,  it  would  have  exempHfied  for 
him  a  status  far  beyond  that  which  he  derived  from  Roman  Law. 
Gentilis  at  Oxford  (1585)  "lays  it  down",  says  Ward,^  "that  all 
Sovereign  Princes  are  bound  to  be  governed  by  it  (Roman  Civil 
Law)  in  the  disputes  which  arise  between  them."  But,  it  is  sub- 
mitted, in  this  instance  they  followed  their  Roman  teachers  too 
closely,  when  a  better  was  at  hand.  For  this,  Gentilis  could  scarce- 
ly be  excused.  As  to  Grotius,  possibly  the  conflicting  interests  of 
his  own  country  and  England,  at  this  time,  may  have  prejudiced 
his  judgment  slightly,  or  prevented  his  looking  to  English  sources 
with  the  same  assiduity  that  he  bestowed  elsewhere ;  for  it  will  be 
remembered  that  in  defending  the  maritime  rights  of  Holland 
against  the  claims  of  England  just  before  his  great  work  appeared, 
his  services  were  characterized  by  zealous  patriotism  as  well  as  by 
his  unusual  ability. 

It  does  not  follow,  however,  granting  that  this  specific  case  was 
unknown  to  the  publicists,  that  the  mildness  of  the  later  English 
military  usage  was  without  its  influence  upon  them.  Gentilis,  it 
will  be  remembered,  was  at  Oxford  during  Elizabeth's  reign — 
than  whom  no  sovereign,  perhaps,  ever  had  a  greater  abhorrence 
for  war — and  he  was  frequently  consulted  upon  matters  of  interna- 
tional policy.  From  the  mildness  of  his  counsel  and  the  readiness 
with  which  it  was  accepted  we  are  warranted  in  inferring  a  hannony 
of  views  upon  such  subjects  in  general,  whether  or  not  those  of 
Gentilis  may  be  understood  as  cause  or  effect.  This  comes  a  long 
way  short  of  proof ;  but  it  is  sufficiently  probable  to  be  mentioned 
along  with  that  of  a  previous  chapter  as  indicative  of  our  special 
indebtedness  to  English  usage  along  with  Roman,  and  in  contrast 
with  continental  European. 

V 

FROM  GROTIUS  TO  VATTEL 

The  century  following  Grotius  witnessed  the  greatest  degree  of 

amelioration  of  military  usage  the  world  has  ever  known.     When 

we  compare  the  Thirty  Years  War  with  what  Vattel  says  of  the 

^Robert  Ward,  An  Enquiry  into  the   Foundation  and  History  of  the 
Laws  of  Nations  in  Europe,  p.  609. 


42  Belligerent  Occupation 

wars  of  his  times — about  the  middle  of  the  eighteenth  century — 
the  change  is  scarcely  believable.^  The  changes  were  such  in  gen- 
eral, as  affected  the  rights  of  persons  rather  than  those  of  property, 
the  foimer  naturally  winning  recognition  sometime  in  advance  of 
the  latter. 

It  needs  no  debate  to  show  that  in  all  the  steps  in  the  develop- 
ment of  belligerent  occupation,  the  greatest,  as  affecting  persons, 
is  the  distinction  between  combatants  and  noncombatants,  a  dis- 
tinction which  came  about  during  this  period.  -"Till  the  distinc- 
tion between  combatants  and  noncombatants  was  clearly  and  def- 
initely embodied  in  the  laws  of  war  in  the  latter  half  of  the  seven- 
teenth century,"  says  Lawrence,  "the  unarmed  inhabitants  of  an 
invaded  country  were  liable  to  be  slaughtered  at  the  will  of  the  in- 
vader, and  were  almost  always  exposed  to  shameful  indignities." 
This  exposure  of  the  unarmed  to  the  same  fate  as  that  of  the  armed 
is  a  corollary  to  that  ancient  theory  which  regards  a  war  as  waged 
between  peoples  rather  than  between  states.  But  how  did  such 
a  change  come  about? 

The  answer  is  not  far  to  seek.  Nationalism,  the  chief  political 
outcome  of  the  middle  Ages,  was  necessarily  accompanied  by  the 
growth  of  standing  armies  to  add  the  sanction  of  force  to  the  author- 
ity of  the  state.  Says  Taylor,  ^"During  the  Middle  Ages  war  be- 
came a  trade,  carried  on  by  highly  trained  mercenaries,  who  sold 
their  services  wherever  required.  Upon  the  formation  of  large 
states,  however,  that  plan  became  unreliable  and  unsatisfactory. 
The  growth  of  Spanish  power  in  the  fifteenth  century  was  accom- 
panied by  that  of  a  disciplined  national  army  under  Ferdinand, 
Charles,  and  Philip.  Thus  was  necessitated  similar  organizations 
in  France  under  Francis  I  and  Louis  XIV,  and  in  Prussia  under 
Frederick  II."  Now  a  regular  army  acts  under  military  law  and 
is  subject  to  vigorous  discipline,  its  aim  being  to  become  the  most 
efficient  fighting  machine  possible.  In  this  specialization  of  func- 
tion we  have  the  growing  differentiation  between  combatants  and 
non-combatants  which  has  resulted  so  beneficially  upon  the  usages 
of  war.     Obviously,  the  differentiation  had  to  be  made  within  the 

'Vattel  .  .  .  tells  us  that  what  struck  him  most  in  the  wars  of  his  day- 
was  their  extreme  gentleness;  and  of  the  standard  of  gentleness  proper  to  be 
followed  in  war  Vattel  was  a  severe  judge.  Maine,  Sir  H.,  in  International 
Law. 

*T.  J.  Lawrence,  The  Principles  of  International  Law,  p.  342. 
*Hannis  Taylor,  p.  472,  International  PubUc  Law. 


From  Grotius  to  Vattel  43 

state  before  it  could  be  observed  internationally.  Along  with  this 
distinction  there  naturally  grew  up  also  a  differentiation  between 
people  and  state,  the  latter  being  the  organism  which  governs, 
while  one  further  concept,  the  nation,  is  equivalent  to  the  people 
plus  the  state.  A  still  further  result  of  nationalism  was  the  idea  of 
territoriaHty;  that  is  to  say,  that  a  state's  jurisdiction  extended 
over  a  certain  definite  territory  as  well  as  over  a  particular  people. 
Summing  up  the  results  of  the  upgrowth  of  nationaHsm  they  are 
chiefly  as  follows: 

1.  The  distinction  between  people,  state  and  nation; 

2.  The  idea  of  territoriality, — the  coterminous  limits  of  the  jur- 
isdiction of  the  state  with  a  certain  geographical  area; 

3.  The  distinction  between  the  agencies  which  the  state  uses  to 
enforce  its  will,  i.  e.,  combatants,  and  those  for  whom  these  agen- 
cies are  used,  i.  e.,  non-combatants. 

Of  these  three  the  first  and  second  are  fundamental  and  there- 
fore important;  but  it  is  the  third  which  goes  farthest  in  correcting 
a  notoriously  antiquated  and  infamous  usage.  In  the  whole  range 
of  race  development  it  seems  hardly  possible  that  any  other  step 
could  equal  the  importance  of  this.^  "Chaos  would  come  again 
on  land  and  sea  if  the  old  theory  dominated  the  modem  practice ; 
if  all  the  citizens  of  one  country  engaged  in  actual  hostilities 
with  all  those  of  the  other.  "^ 

But  it  may  be  said,  the  distinction  between  combatants  and  non- 
combatants  did  not  wait  upon  the  development  of  nationalism. 
Even  in  ancient  times  the  same  distinction  was  sometimes  drawn, 
and  the  Roman  citizen  had  a  right  to  exemption  from  the  hardships 
that  the  legionaries  endured,  for  the  latter  were  paid  for  just  that 
service  to  the  public.  True,  but  while  the  Roman  had  procured 
this  exemption  for  himself  he  had  no  idea  of  attributing  the  same 
degree  of  advancement  to  other  peoples  It  was  not  until  there 
were  many  nations  professing  adherence  to  the  same  principles 
that  the  changes  above  outlined  could  occur.  It  was  not  until 
then  that  the  distinction  took  on  a  legal  aspect,  whereas  it  had 
formerly  been  mainly  optional  with  the  commander. 

How  far  these  changes  were  due  to  the  teachings  of  the  publi- 

'Those  who  with  Tolstoi  see  nothing  but  evil  in  the  nationalism  of  today 
with  all  its  burdensome  militarism,  must  both  take  account  of  the  importance 
of  this  step,  and  show  that  there  is  no  danger  of  a  necessity  of  its  recurrence 
in  case  their  views  were  to  prevail  and  disarmament  follow. 

^Hannis  Taylor,  International  Public  Law,  p.  473. 


44  Belligerent  Occupation 

cists,  it  is  not  a  part  of  our  purpose  to  inquire.  Of  Grotius  we  need 
but  add  the  words  of  Hallam — "It  is  acknowledged  by  everyone 
that  the  publication  of  this  treatise  (De  Jure  Belli  et  Pacis),  made 
an  epoch  in  the  philosophical  and  we  might  almost  say  in  the  po- 
litical history  of  Europe."  Suffice  it  to  say  that  the  change  came  in 
the  due  course  of  historical  development  after  a  long  period  of  qui- 
escent preparation,  and  that  they  came  promptly  after  the  Peace  of 
Westphalia  where  the  influence  of  Grotius  was  unprecedented. 
Some  notice  remains  to  be  taken  of  the  views  of  his  successors  down 
to  the  time  of  Vattel,  since  when  the  course  of  international  regu- 
lations has  been  more  a  matter  for  world's  congresses  and  for  ad- 
miralty and  prizecourt  decisions. 

Richard  Zouch,  the  successor  of  Gentilis  at  Oxford,  shows  noth- 
ing of  the  imminent  departure  from  the  older  usages.  He  recog- 
nizes the  right  of  complete  mastery  of  the  victor  over  conquered 
territory.^  Samuel  von  Pufendorf  (1631-1694)  follows  so  closely 
in  the  steps  of  Grotius  that  his  work  might  almost  be  called  an  edi- 
tion thereof  .2  "How  far  the  liberties  of  war  may  be  extended  upon 
the  goods  of  an  enemy  and  things  we  call  sacred  we  are  informed  by 
Grotius,  I,  III,  C.  5."  Thus  he  refers  us  to  the  same  authority  in 
respect  to  the  treatment  of  the  persons  of  the  enemy.  He  thinks 
that  mercenary  soldiers  have  no  right  to  plunder,  but  "it  is  no  more 
than  a  good  prince  that  hath  a  love  for  his  subjects  would  yield 
to,  that  the  subjects  should  be  allowed  in  return  to  make  some 
advantage  to  themselves  by  the  war ;  which  may  be  done  either  by 
assigning  to  them  a  certain  pay  from  the  public  when  they  go  out 
upon  any  expedition  or  by  sharing  the  booty  among  them,  or  by 
giving  everyone  leave  to  keep  the  plunder  he  gets  himself,^"  etc. 
This  is  following  Grotius  by  forgetting  his  "temperamenta".  In 
one  particular,  however,  he  takes  advanced  ground  beyond  that  of 
his  master,  and  therein  speaks  the  conviction  bom  of  the  new  move- 
ment. Grotius  had  tolerated  private  war;  Pufendorf  shows  that 
"this  is  also  part  of  the  right  of  war,  to  appoint  what  persons  are 
to  act  in  a  hostile  manner  against  the  enemy,  and  how  far."  In 
other  words,  it  is  the  distinction  between  combatants  and  non- 
combatants  and  the  exclusion  of  the  latter  from  hostile  acts.    "No 

'Deinde  universum  Dominum  in  res  et  personas,  regiones  scilicet  & 
populas,  acquiritur  Deditione  &  victoria."  See  Juris  et  Judicii  Fecialis,  p. 
80,  Richard  Zouch,  (1590-1660). 

^Samuel  von  Pufendorf,  De  Jure  Naturae  et  Gentium  Sec.  19. 

*De  Jure  Naturae  et  Gentium  Sec.  21. 


From  Grotius  to  Vattel  45 

private  person,"  he  says,  "hath  power  to  make  devastations  in 
an  enemy's  country,  or  to  carry  oflE  spoil  or  plunder,  without  per- 
mission from  his  sovereign.  "^  This  same  idea  is  brought  out 
and  emphasized  again  in  connection  with  the  subject  of  postli- 
minium, in  that  all  property  recaptured  by  soldiers  returns  to  the 
former  owners,  since  the  soldiers  are  pubHc  servants  and  it  is  no 
more  than  their  duty  to  defend  the  property  rights  of  their 
countrymen. 

It  is  disappointing  to  find  that  this  advanced  ground  was  not 
taken  by  the  able  jurist  Van  Bynkershoek.  As  already  pointed  out 
by  Wheaton,  both  he  and  Wolf^  "assert  the  broad  principle  that 
everything  (ione  against  an  enemy  is  lawful ;  that  he  may  be  destroy- 
ed though  unarmed  and  defenseless ;  ....  that  an  unlimited  right 
is  acquired  by  the  victor  to  his  person  and  property."  As  to  post- 
liminiimi  he  simply  quotes  Grotius,  gives  a  few  contemporary  ap- 
plications and  illustrations,  especially  its  application  to  ships;  but 
his  influence  upon  the  amelioration  of  war,  notwithstanding  his  ser- 
vices in  behalf  of  neutrality,  was  decided  reactionary. 

The  work  of  Vattel*,  though  appearing  but  a  few  days  later  fur- 
nishes an  agreeable  contrast  to  what  has  just  been  said.  At  last 
we  have  reached  an  authority  who  has  distinctly  the  modem  point 
of  view.  Grotius  had  chosen  his  illustrations  from  the  remote  past, 
and  looked  to  the  same  sources  for  the  principles  which  he  wished 
to  prevail.  Thus  also  it  had  been  with  his  followers.  Vattel,  on 
the  other  hand,  searched  for  his  principles  just  as  he  tells  us  he 
did  for  his  illustrations,  in  the  usages  of  his  own  times.  Thus  he 
did  well  not  only  to  forget  a  great  deal  of  the  old  but  to  profit  by 
much  that  was  new.  We  detect  no  echo  of  scholasticism,  for  all 
is  concrete  and  recent. 

It  is  important  to  notice  first  his  distinction  between  the  different 
classes  of  enemies.  Thus  he  says,  ^"Whilst  a  man  continues  a 
citizen  of  his  own  country,  he  is  the  enemy  of  all  those  with  whom 
his  nation  is  at  war.     But  we  must  not  hence  conclude  that  these 


ilbid.  Sec.  21. 

^Cornelius  Jan  van  Bynkershoek  (1673-1743)  Quaestiones  Juris  Public!, 
1737. 

'Dixi  per  vim,  non  per  vim  justam,  omnis  enim  vis  in  bello  justa  est,  si 
me  audias,  &  ideo  justa,  cum  liceat  hostem  opprimere,  etiam  inermem,  cum 
liceat  veneno,  cum  liceat  percussore  immisso  .  .  ut  uno  verbo  dicam  quomodo 
cumque  libuerit.     Quaestiones  Juris  Pub.  I,  I,  3. 

^Emmerich  de  Vattel  (1714)     The  Law  of  Nations,  1758. 

'Vattel,  The  Law  of  Nations,  III,  M71-2. 


46  Belligerent  Occupation 

enemies  may  treat  each  other  as  such.wherever  they  happen  to 

meet Since  women  and  children  are  subjects  of  the  state, 

and  members  of  the  nation,  they  are  to  be  ranked  in  the  class  of 
enemies.  But  it  does  not  thence  follow  that  we  are  justifiable  in 
treating  them  like  men  who  bear  arms,  or  are  capable  of  bearing 
them.  It  will  appear  in  the  sequel  that  we  have  not  the  same  rights 
against  all  classes  of  enemies."  The  phrase  "or  are  capable  of 
bearing  arms",  shows  that  he  had  not  quite  reached  the  modem  dis- 
tinction between  combatants  and  non-combatants.  Though  the 
term  "enemy"  admits  of  gradations  of  meaning  it  is  evident  that 
men  unarmed  but  capable  of  bearing  arms  would  not  be  granted  ex- 
emption upon  the  same  terms  as  women  and  children,  as  would  now 
be  the  case.  The  further  significance  of  this  is  seen  m  the  treat- 
ment of  private  property,  since  it  necessarily  shares  the  fortunes  of 
its  owners.  ^"It  is  not  the  place  where  a  thing  is  which  determines 
the  nature  of  that  thing,  but  the  character  of  the  person  to  whom  it 
belongs."  This  is  true  of  movable  property.  Immovable  proper- 
ty, however,  belongs  in  some  measure  to  the  state,  is  a  part  of  its 
domain.  Hence  property  of  this  kind  does  not  cease  to  be  enemy's 
property  though  possessed  by  a  neutral  foreigner."  But  while  this 
gives  us  some  idea  of  the  distinctions  following  upon  the  recognition 
of  classes  of  enemies,  we  are  not  yet  in  a  position  to  say  what  was 
the  nature  of  the  legal  status  of  occupation  in  Vattel's  system.  This 
we  find  again  in  connection  with  his  treatment  of  postliminium. 
^"Prisoners  of  war,  who  have  given  their  parole — territories  and 
towns  which  have  submitted  to  the  enemy,  and  have  sworn  or  prom- 
ised allegiance  to  him — can  not  of  themselves  return  to  their  for- 
mer condition  by  the  right  of  postliminium ;  for  faith  is  to  be  kept 
even  with  enemies. ' '  This  passage  is  full  of  significance  to  our  sub- 
ject. It  is  significant  that  "territories  and  towns  which  have  sub- 
mitted to  the  enemy  and  have^  sworn  or  promised  allegiance  to  him' ' 
are  placed  along  with  "prisoners  of  war  who  have  given  their  pa- 
role." This  implies  an  obligation  on  the  part  of  the  territories  and 
towns  similar  to  that  of  the  prisoner  who  gives  his  word  of  honor, 
as  required,  in  return  for  the  sparing  of  his  life  or  the  release  of  his 
person.     And  just  as  the  released  prisoner  should  observe  the  terms 

>Ibid  Sec.  75,  76. 

*Ibid,  III,  XIV,  Sec.  210. 

'Inhabitants  of  an  area  'of  occupation  are  not  now  required  to  promise 
or  swear  allegiance  to  the  invader.  They  merely  promise  obedience  to  his 
authority  so  long  as  he  is  able  to  maintain  himself  as  the  occupant. 


From  Grotius  to  Vattel  47 

of  his  parole,  so  the  inhabitants  of  the  occupied  area,  in  return  for 
the  protection  which  the  commander  gives  them  from  the  violence 
of  marauders,  should  render  obedience  to  the  government  de  facto. 
But  why  can  they  not  return  to  their  former  condition  by  postU- 
minium  ?  It  will  be  remembered  that  according  to  the  Roman  law, 
as  Gaius  expressly  states,  a  captive  upon  escaping  to  his  own  coun- 
try returns  to  his  former  condition,  and  his  absence  is  in  the  eyes  of 
the  law  as  if  it  had  not  been.  The  word  of  Regulus  in  promise  of 
return  to  his  Carthaginian  captors,  however,  was  not  to  be  broken 
even  with  the  permission  of  the  law.  This  high  sense  of  personal 
honor  when  Vattel  wrote  had  come  to  the  point  of  recognition  as 
international  law,  in  that  a  paroled  prisoner  did  not  enjoy  the  right 
of  postliminium  while  a  recaptured  prisoner  did;  and  along  with  the 
paroled  prisoners  he  classes  what  we  would  call  occupied  territory. 
On  the  contrary  as  to  recovered  prisoners  or  territory,  if  the  sov- 
ereign retakes  them  ^''he  recovers  all  his  former  rights  over  them, 
and  is  bound  to  restore  them  in  their  pristine  condition .  In  this  case 
they  enjoy  the  right  of  postHminium  without  any  breach  of  their 
word,  any  violation  of  their  plighted  faith.  The  enemy  loses  by  the 
chance  of  war  a  right  which  the  chance  of  war  had  before  given 
him." 

After  considering  the  fundamental  questions  of  sovereignty  and 
allegiance  Vattel  speculates  briefly  upon  a  few  specific  sub-topics. 
He  asks,  for  instance,  whether  a  town  having  been  reduced  by  the 
enemy's  arms  and  then  retaken,  recovers  such  part  of  her  prop- 
erty as  had  been  alienated  by  the  enemy.  Replying  to  this  he 
says  that  movable  property  "belongs  to  the  enemy  who  gets  it 
into  his  hands,  and  he  may  irrecoverably  alienate  it."  Immovable 
property,  on  the  other  hand,  enjoys  the  right  of  postliminium, 
whether  public  or  private.  If  public,  the  invader  enjoys  only  the 
right  of  usufruct,  and  that,  too,  only  for  the  purposes  already  em^ 
ployed  thereon.  "The  acquisition  of  a  town  taken  in  war  is  not 
fully  consummated  till  confirmed  by  the  treaty  of  peace,  or  by  the 
entire  submission  or  destruction  of  the  state  to  which  it  belonged." 
Likewise  a  person  who  should  be  so  "prematurely  forward"  as  to 
purchase  immovable  property  from  the  occupant  would  deserve 
to  lose  his  title  thereto. 

Under  the  general  term  of  "booty"  he  includes  all  movable  prop- 

ilbid  M211. 

ilbid,  III,  XIV,  Sec.  212. 


48  Belligerent  Occupation 

erty  taken  from  the  enemy.  "This,"  he  says,"  naturally  belongs  to 
the  sovereign  making  war . ' '  His  soldiers  and  auxiliaries  are  only  his 
instruments  and  all  that  they  do  is  in  his  name.  He  ^"may  grant 
the  troops  what  share  of  the  booty  he  pleases.  At  present  most 
nations  allow  them  whatever  they  can  make  on  certain  occasions 
when  the  general  allows  plundering,  such  as  the  spoil  of  the  en- 
emy's fallen  in  the  field  of  battle,  a  camp  which  has  been  forced, 
and  sometimes  that  of  a  town  taken  by  assault." 

Here  we  find  for  the  first  time  the  use  of  the  word  "contribut- 
tions"  together  with  an  account  of  the  origin  of  the  custom  for 
which  it  stands. 

2" Instead  of  the  custom  of  pillaging  the  open  country,"  he  says, 
"another  mode  has  been  substituted,  which  is  at  once  more  humane 
and  more  advantageous  to  the  belligerent  sovereign — I  mean  that  of 
contributions.  Whoever  carries  on  a  just  war  has  a  right  to  make 
the  enemy's  country  contribute  to  the  support  of  his  army,  and 
towards  defraying  all  the  charges  of  the  war.  Thus  he  obtains  a 
part  of  what  is  due  to  him ;  and  the  enemy's  subjects,  by  consenting 
to  pay  the  sum  demanded,  have  their  property  secured  from  pillage 
and  the  country  is  preserved."  ....  "Instances  of  humanity  and 
moderation  can  not  be  too  often  quoted.  A  very  commendable 
one  occurred  during  those  long  wars  which  France  carried  on  in  the 
reign  of  Louis  XIV.  The  sovereigns  seeing  it  was  their  mutual 
interest  as  well  as  duty  to  prevent  ravage,  made  it  a  practice  on  the 
commencement  of  hostilities  to  enter  into  treaties  for  regulating 
the  contributions  on  a  supportable  footing;  they  determined  the 
extent  of  hostile  territory  in  which  each  might  demand  contribu- 
tions, the  amount  of  them  and  the  manner  in  which  the  parties  sent 

to  levy  them  were  to  behave By  such  steps  they  prevented  a 

mvdtitude  of  disorders  and  enormities  which  entail  ruin  on  the  peo- 
ple and  generally  without  the  least  advantage  to  the  belligerent  sov- 
ereigns. Whence  comes  it  that  so  noble  an  example  is  not  universal- 
ly imitated  ?"  It  is  scarcely  necessary  to  add  that  it  is  now  almost 
universally  imitated.  However  students  of  history  will  recall  that 
the  above  instance  is  by  no  means  typical  of  all  the  warfare  of  Louis 
XIV.  An  instance  to  the  contrary  is  seen  in  the  devastation  of  the 
palatinate  in  1688;  which  was  such,  according  to  one  writer^  that 


'Ibid,  III,  IX,  Sec.  164. 

'Ibid,  Sec.  165. 

'Hqsack,  The  Law  of  Nations,  p.  240, 


From  Grotius  to  Vattel  49 

"even  the  dismal  records  of  the  Thirty  Years  War  afford. no  paral- 
lel." This  language  may  be  a  little  extreme.  Certain  it  is,  how- 
ever, that  the  usage  in  the  latter  half  of  the  seventeenth  century  was 
much  milder  in  general  than  in  the  first  half,  and  it  was  no  less 
certain  that  it  furnished  several  examples  of  savagery  which  would 
by  no  means  justify  the  rather  roseate  \'iew  of  war  which  Vattel  en- 
tertained. No  doubt  he  had  most  in  mind  the  orderly  campaigns  of 
Marlborough  and  Eugene  with  which  the  eighteenth  century 
opened. 

One  point  further  in  connection  with  private  movable  property, 
which  had  been  much  in  controversy  with  Bynker shock  and  others, 
was  the  right  to  confiscate  debts  due  to  the  enemy.  Upon  this 
point  Vattel  agrees  with  modem  practice  in  that  public  debts  are 
confiscable,  and  he  cites  the  classic  instance  of  Alexander's  per- 
mission to  the  Thessalians  of  a  debt  due  to  the  Thebans  whom  he 
had  just  conquered.  As  to  private  deljts,  he  grants  the  right  of  a 
soverieign  to  confiscate  them  if  the  term  of  payment  happen  during 
the  war ;  or  he  has  the  right  to  prohibit  his  own  subjects  from 
paying  a  debt  to  the  enemy  during  the  war,  though  as  to  the  latter 
he  thinks  that  the  sovereigns  of  Europe  in  the  interests  of  com- 
merce act  with  less  rigor  than  they  formerly  did. 

We  may  summarize  the  development  of  our  subject  as  treated 
by  Vattel  thus: 

1.  The  distinction  between  combatants  and  non-combatants, 
though  not  quite  as  it  is  drawn  today. 

2.  The  distinction  between  sovereignty  and  ownership,  follow- 
ing upon  the  distinction  between  state  and  people. 

3.  Denial  of  the  right  of  an  invader  to  aHenate  or  abuse  public 
immovable  property,  and  concession  of  his  right  to  the  usufruct 
thereof. 

4.  Concession  of  his  right  to  confiscate  all  pubHc  movable 
property,  including  debts  and  securities. 

5.  Denial  of  invader's  right  to  dispossess  the  owners  of  private 
immovable  property. 

6.  The  recognition  of  the  right  to  seize  all  private  movable  prop- 
erty. 

7.  The  origin  of  the  system  of  contributions  as  a  substitute  for 
confiscation  and  pillage. 

"As  far  as  consistent  with  prudence  it  is  glorious  to  obey  the 
voice  of  clemency"^— such  is  Vattel  throughout. 
'Ibid,  III,    IX,  Sec.  142. 


60  Belligerent  Occupation 

VI 
FROM  VATTEL  TO  THE  PRESENT 

The  last  of  the  pubUcists  of  commanding  influence  speaks  in  the 
pag  es  of  Vattel ;  for  though  there  have  been  treatises  in  abundance 
since  his  time,  no  other  has  arisen,  or  seems  likely  to  arise,  who 
can  be  in  a  position  to  command  the  attention  of  statesmen  and 
rulers  to  the  same  degree.  International  law  as  now  understood 
spiings  out  of  comity,  and  ccmity  is  not  accustomed  to  listen  to 
authority.  In  its  earlier  days  while  it  was  in  the  making  inter- 
national law  needed  to  be  moulded  and  shaped  into  a  system,  and 
given  the  stamp  of  individual  minds.  Those  were  the  days,  and 
that  was  the  opportunity  of  the  publicists,  the  schoolmasters  as 
it  were;  for  ccmity  does  not  sj-stematize,  does  not  humanize  the 
law  of  nations. 

"Vattel,"  says  Lawrence,  writing  in  1758,  "was  the  first  jurist 
to  scout  the  theory  that  a  military  possessor  might  perform  acts 
of  sovereignty."^  The  consequence  of  such  a  theory,  as  we  have 
seen,  is  to  make  the  military  possessor  utterly  irresponsible — a 
military  despot.  This  theory  "seems  to  have  been  acted  upon,"  to 
quote  again  from  Lawrence,  "down  to  the  middle  of  the  eighteenth 
century",  (and  then  a  few  instances  are  added  by  way  of  illustra- 
tion, such  as  the  settling  of  occupied  territory  by  the  King  of 
Denmark  in  1712,  and  the  impressment  of  the  Saxons  against  their 
own  country  by  Frederick  the  Great).  As  a  matter  of  fact  the 
theory  has  been  acted  upon,  though  with  a  different  purpose,  at 
a  much  later  time,  and  is  still  upheld  by  some  military'  writers  of 
the  present  day.  In  the  Napoleonic  wars,  if  we  are  to  believe 
the  testimony  of  the  Duke  of  Wellington  concerning  himself,  the 
ancient  theory  prevailed,  though  it  was  benignly  interpreted. 
^"Martial  law,"  said  the  Duke,  "is  neither  more  nor  less  than  the 
will  of  the  General  who  commands  the  army ;  in  fact  martial  law 
is  no  law  at  all  (I)  Therefore,  the  General  who  declares  martial 
law  and  commands  that  it  shall  be  carried  into  execution  is  bound 
to  lay  down  distinctly  the  regulations  and  rules  according  to  which 
his  will  is  to  be  carried  out.  Now  I  have  in  no  country  carried 
out  martial  law;  that  is  to  say,  I  have  not  governed  a  large  pro- 
portion of  a  country  by  my  own  will.     But  then  what  did  I  do? 


*T.  J.  Lawrence,  Principles  of  Inte  rnational  Law,  p.  364. 
'Sir  Henry  Maine,  International  Law,  p.  182. 


From  Vattel  to  the  Present  51 

I  declared  that  the  country  should  be  governed  by  its  own  national 
law,  and  I  carried  into  execution  my  so  declared  will."^  It  need 
only  be  said  that  at  the  present  day  the  Duke  would  have  no  choice 
in  the  matter,  notwithstanding  what  military  writers  may  say,  for 
the  authority  of  international  law  is  supported  by  that  of  national 
law  as  embodied  in  the  military  manuals  of  the  various  nations  and 
as  confirmed  by  the  Hague  Conference.  No  commander  in  a  ci\'il- 
ized  land  today  would  make  the  mistake  of  supposing  that  "mar- 
tial law  means  no  law  at  all." 

Comparing  the  military  usage  of  the  two  wars  between  Great 
Britian  and  America,  the  second  shows  no  advancement  over  the 
first  toward  present  day  usage,  but  rather  the  reverse.  The  reason 
for  this  is  not  far  to  seek.  In  the  Revolution  the  Colonies  were 
still  regarded  as  British  posesssions,  and  the  least  possible  injury 
was  done  by  the  British  forces  to  the  country  which  they  expected 
to  regain.  Again  it  is  well  known  that  the  British,  and  even  the 
French  allies,  paid  in  coin  for  the  needed  supplies;  so  that  while 
the  national  government  was  bankrupted  by  the  war  and  its  worth- 
less fiscal  and  currency  system,  there  was  at  the  end  of  the  war  a 
super-abundance  of  coin  in  the  country.  Moreover  the  persons  of 
the  colonists  were  protected  for  there  were  many  British  sympa- 
thizers among  them.  On  the  other  hand  in  the  War  of  1812  the 
contrary- conditions  prevailed.  The  treatment  accorded  to  the  in- 
vaded country  was  not  merely  such  as  would  be  shown  to  any  for- 
eign nation,  but  was  tinctured,  no  doubt,  with  some  asperity 
because  of  its  having  successfully  revolted;  besides  there  were 
no  tories  then.  Consequently  the  ravages  along  the  Atlantic 
coast,  the  burning  of  the  national  Capitol  and  the  employment  of 
Indians  places  the  usages  of  this  war  on  a  plane  considerably 
below  that  of  the  first. 

It  will  be  remembered  that  Vattel  speaks  of  the  custom  of  de- 
manding contributions  as  a  substitute  for  pillaging  the  open  coun- 
try, the  advantage  being  that  it  is  less  wasteful  and  less  abusive  than 
the  ancient  practice.  We  are  now  to  see  that  the  further  develop- 
ment of  belligerent  occupation  since  his  day  has  been  almost  ex- 
clusively in  this  direction;  and  thus  that  private  movable  property 
is  at  last  winning  its  right  to  protection. 

*This  language  can  hardly  be  explained,  as  Sir  Henry  Maine  attempts  to 
do,  as  a  confusion  of  military  law  with  martial  law.  The  intention  plainly 
enough  is  that  the  Duke  of  Wellington  meant  to  state  his  utter  irresponsi- 
bility in  governing  the  occupied  territory. 


52  Belligerent  Occupation 

Contributions  soon  came  to  be  differentiated  into  two  classes; 
contributions  in  money  and  contributions  "in  kind",  i.  e.  articles 
for  consumption.  Both,  of  course,  were  "forced"  contributions. 
The  first  is  still  called  by  the  original  term,  but  contributions  in 
kind,  though  probably  the  earlier  form,  is  now  more  precisely 
called  "requisitions".  What  is  called  a  "fine"  is  really  a  kind  of 
contribution  demanded  for  some  offense.  It  is  uncertain  how  early 
the  distinction  arose  between  contributions  and  requisitions,  though 
Lawrence  says,  speaking  perhaps  untechnically,  that  requisitions 
took  the  place  of  indiscriminate  plunder  "during  the  campaigns  of 
Marlborough  and  Eugene".^  As  to  the  earliest  use  of  the  word  in 
this  connection,  Taylor-  says,  "By  the  irony  of  history  the  origin 
of  the  word  'requisition'  has  been  attributed  to  that  most  consider- 
ate of  generals,  Washington,  although  the  practice  is  as  old  as  war 
itself."  As  we  have  just  seen,  however,  the  practice  could  have 
originated  but  a  short  time  before  Washington,  and  coming  as  an 
amelioration  of  existing  practice  the  irony  at  once  disappears. 
From  what  was  said  above  concerning  the  Revolutionary  War  it 
is  evident  that  the  distinction  had  been  made  in  practice  at  that 
time,  and  moreover  that  requisitions  were  not  always  "forced" 
since  commodities  were  paid  for  at  the  market  price. 

The  courses  dpen  to  an  invading  officer  in  provisioning  his  troops 
may  be  summarized  as  follows: 

1.  ^He  may  compel  the  inhabitants  to  furnish  them  without 
payment  and  if  they  refuse,  send  out  detachments  to  collect  them. 
This  is  superior  to  indiscriminate  pillage  in  that  it  is  orderly,  and 
limited  to  specific  objects.  In  such  case  he  should  always  give 
a  receipt  for  the  articles. 

2.  He  may  take  them  at  prices  fixed  by  himself.  While  this  is 
a  forced  contribution,  like  the  first,  it  may  be  necessitated  by  the 
rise  in  prices  due  to  the  increased  demand. 

3.  He  may  purchase  them  in  the  open  market. 

4.  He  may  obtain  the  money  for  the  purchase  in  the  form  of 
ransom  or  extortion  enforced  by  threats. 

5.  He  may  obtain  it  by  levying  taxes  upon  the  district  according 
to  laws  already  in  force  but  at  increased  rates. 


'Lawrence,  Principles  of  International  Law,  p.  360 
'Taylor,  Hannis — International  Public  Law,  p.  550. 
'The  first  three  are  quoted  from  Lawrence,  Principles  of  International 
Law,  p.  361. 


From  Vattsl  to  the  Present  53 

6.  He  may  employ  the  ordinary  revenues  of  the  district  for  the 
ordinary  expenditures,  appropriating  the  residue  thereof  to  the 
needs  of  his  force. 

7.  He  may  obtain  all  funds  from  the  home  government,  awaiting 
the  issue  of  the  war  to  settle  all  expense  accounts  in  indemnity 
claims. 

No  two  commanders  have  to  face  exactly  the  same  set  of  con- 
ditions; hence  it  is  impracticable  to  prescribe  eithel-of  the  above 
courses  as  always  the  best  for  all  occasions.  The  commander  may 
find  an  insolent  and  insulting  population  to  deal  with ;  he  may  dis- 
trust the  competency  of  his  force  for  the  area  occupied ;  he  may  have 
guerilla  bands,  "war  rebels"  and  "war  traitors"  to  contend  with; 
he  may  be  assigned  the  unpleasant  duty,  under  "miUtary  necessity" 
of  burning  a  city,  or  devastating  a  fair  region;  he  may  be  confronted 
with  such  a  contingency  as  meeting  a  levee  en  masse,  for  certainly 
the  population  cannot  be  blamed  for  throwing  off  the  burden  of 
constrained  obedience  whenever  they  feel  themselves  competent  to 
do  so,  nor  can  the  commander,  on  the  other  hand,  if  they  fail  in 
their  undertaking,  be  blamed  for  treating  them  \^'ith  much  more 
rigor  than  he  treats  his  prisoners  of  war.  All  such  conditions  and 
many  more,  so  diversify  the  problem  in  each  particular  case  that 
we  can  only  say  what  is  the  ideal  course  in  a  hypothetically  ideal 
war — that  is,  a  war  between  states,  not  individuals. 

It  may  be  stated  in  general  terms  that  down  to  the  time  of 
Vatttel  the  progress  of  amelioration  of  military  usage  tended  to 
eliminate  the  individual  element  on  the  side  of  the  invader.  Con- 
tributions and  requisitions  mark  the  diminishing  freedom  o#  the 
soldier  to  pillage.  Since  his  time  the  tendency  has  been  and  still 
is  to  set  limits  to  the  rights,  even  of  the  invading  state,  to  the  con- 
fiscation of  private  property.  One  exception  that  must  always 
be  made  to  this  statement  is  that  of  contraband  of  war.  If  we  grant 
the  right  of  a  state  to  make  its  adversary  pay  the  bills,  as  inter- 
national law  of  today  maintains,  it  is  evident  that  payment  must 
be  exacted  from  the  enemy  state  rather  than  its  subjects.  _  What- 
ever loss  the  subjects  suffer  should  be  as  part  of  that  state,  in  order, 
as  a  matter  of  justice,  that  the  loss  may  be  distributed  equally, 
and  that  the  person  primarily  responsible,  i.  e.  the  state,  may  be 
primarily  accountable 

The  conclusion  necessarily  follows  that  in  an  ideally  conducted 
war,  first,  all  supplies  should  be  purchased  in  the  open  market^ 


54  Belligerent  Occupation 

and  second,  the  expense,  in  so  far  as  it  falls  upon  the  enemy  state, 
should  fall  upon  the  whole  state,  and  should  therefore  be  an  item 
for  adjustment  at  the  close  of  the  war.  Such  a  conclusion  elim- 
inates all  confiscation,  granting  that  the  war  itself  is  justifiable, 
not  only  by  the  individual  soldier,  but  by  the  state.  In  such  a  case, 
non-combatants  suffer  only  in  the  increase  of  taxes,  and  this  is  the 
fullest  realization  of  the  aim  and  the  development  of  belligerent 
occupation. 

It  may  be  said  that  this  is  Utopian ;  it  is  not  to  be  expected  that 
warfare  will  ever  be  so  mild  for  non-combatants  while  every  pos- 
sible means  is  used  to  annihilate  those  who  are  under  arms.  In 
reply  it  can  be  positively  asserted  that  this  is  certainly  the  logical 
outcome  of  the  historical  tendencies  in  the  matter.  Moreover,  if 
instances  are  wanted,  Lawrence  points  out  that  "Wellington  pur- 
chased the  supplies  he  did  not  carry  with  him  when  he  overran 
southern  France  in  1813  and  1814,  and  General  Scott  followed  his 
example  during  the  invasion  of  Mexico  by  the  forces  of  the  United 
States  in  1846  and  1847. "^  Again,  "In  the  Crimean  War  the  Brit- 
ish bargained  with  the  country  people  for  what  they  bought,  but 
the  French  fixed  their  own  prices."  Such  cases  come  very  near 
realizing  the  hypothetical  war  we  have  supposed. 

But  it  is  not  so  far  short  of  this  when  contributions  are  levied 
in  an  orderly  way,  as  is  required  by  modem  international  law. 
The  commander  collects  the  taxes,  retains  the  civil  officers  so  far 
as  practicable,  administers  the  laws  already  in  force,  and  main- 
tains his  own  troops,  if  he  can,  by  means  of  the  local  revenues  as 
a  part  of  the  local  government.  From  such  an  undisturbed  con- 
dition to  that  of  great  turbulence  and  possible  desolation  of  the 
land  there  are  many  gradations,  each  of  which  must  be  met  as  cir- 
cumstances may  determine. 

The  military  usage  of  the  American  Civil  War  concerns  us  chiefly 
as  affording  the  occasion  which  produced  the  first  military  manual 
ever  compiled,  if  we  except  the  comparatively  rudimentary  at- 
tempt of  Henry  V.  Being  a  civil  war,  it  had  no  international 
character,  except  such  as  was  voluntarily  accorded  to  it  by  the  con- 
testants. The  position  taken  by  the  Federal  administration  was 
that  the  seceding  states  were  never  out  of  the  union.  In  occupying 
a  part  of  the  seceded  territory  the  Federal  army  was  occupying  a 
part  of  the  national  domain  subject  to  the  Federal  Constitution. 
»Ibid,  p.  362. 


From  Vattel  to  the  Present  55 

It  was  simply  restored  by  occupation  to  its  true  allegiance  as  soon 
as  it  was  wrested  from  the  hostile  forces.  So  much  for  the  legal 
status  of  the  invaded  territory. 

But  while  the  international  character  was  thus  denied  to  the 
invaded  district,  the  magnitude  and  importance  of  the  struggle 
stamped  it  with  the  international  character,  and  the  usages  of  in- 
ternational warfare  were  observed  as  to  the  contestants.  Hence 
we  have  a  duality  of  relationship,  such  as  must  necessarily  be  the 
case  in  civil  wars  generally,  where  the  condition  of  warfare  af- 
fecting the  territory  are  more  favorable  than  those  affecting  the 
forces  in  rebellion. 

It  may  be  wondered  at  that  the  usages  in  the  Civil  War  were 
less  mild  than  those  of  any  other  civilized  contest  in  which  the 
United  States  has  been  engaged.  Certainly  the  ideals  of  General 
Scott  in  the  Mexican  War  were  not  always  realized  in  the  occupa- 
tion of  a  hostile  territory  in  the  Civil  War ;  on  the  contrary  even  the 
defenceless  conduct  of  Admiral  Cockbum  in  the  War  of  1812  could 
be  paralleled  in  Sherman's  march  to  the  sea,  unless  the  latter  can. 
be  defended  as  a  "military  necessity."  What  the  Confederate  sol- 
diers would  have  done,  the  case  being  reversed,  it  is  fair  to  infer 
from  what  they  did  "do  in  their  brief  invasion  of  the  North,  the 
burning  of  Chambersburg^  and  the  wasting  of  the  country  on  the 


^The  attitude  of  General  Lee  in  regard  to  military  usage  is  to  be  seea 
from  the  following: 

Headquarters  A.  N.  V. 

Chambersburg,  Pa.,  June  27, 1863. 

General  orders  No.  73.  i 

The  commanding  general  has  marked  with  satisfaction  the  conduct  of  the 
troops  on  the  march  and  confidently  anticipates  results  commensurate  with 
the  high  spirit  they  have  manifested.  No  troops  could  have  displayed 
greater  fortitude  or  better  performed  the  arduous  marches  of  the  first  ten 
days.  Their  conduct  in  other  respects  has,  with  few  exceptions,  been  in 
keeping  with  their  character  as  soldiers  and  entitles  them  to  approbation 
and  praise. 

There  have,  however,  been  instances  of  forgetfulness  on  the  part  of  some 
that  they  have  in  keeping  the  yet  unsulUed  reputation  of  the  army,  and  the 
duties  exacted  of  us  by  civilization  and  Christianity  are  no  less  obligatory  in 
the  country  of  the  enemy  than  in  our  own.  The  commanding  general  con- 
siders that  no  greater  disgrace  could  befall  an  army,  and  through  it  to  our 
whole  people,  than  the  perpetration  of  the  barbarous  outrages  upon  the  in- 
nocent and  defenseless  and  the  wanton  destruction  of  private  property  that 
has  marked  the  course  of  the  enemy  in  our  own  country.  Such  proceedings 
not  only  disgrace  the  perpetrators  and  all  connected  with  them  but  are  sub- 
versive of  discipline  and  efficiency  of  the  army  and  destructive  of  the  ends 
of  our  present  movements.  It  must  be  remembered  that  we  make  war  only 
on  armed  men,  and  that  we  cannot  take  vengeance  for  the  wrongs  our  people 
have  suffered  without  lowering  ourselve^  in  the  eyes  of  all  whose  abhorrence 
has  been  excited  by  the  atrocities  of  our  enemy,  and  oflfending  against  Him 


66  Belligerent  Occupation 

line  of  march.  The  treatment  of  the  population  of  the  occupied 
areas  was  certainly  not  harsher,  however,  than  military  usage  in 
other  respects  on  both  sides.  The  reasons  for  recrudescence  are 
sufficiently  numerous  and  cogent,  even  when  briefly  examined,  to 
accoimt  for  the  departures  from  the  best  usuage  preceding,  and 
they  incriminate  both  sides  equally. 

Not  to  go  too  far  into  so  vast  a  subject,  let  it  suffice  to  point 
out  the  following: 

1.  The  war  was  at  first  conducted  mildly  enough  to  satisfy 
modem  usage. 

2.  The  bitterness  of  a  political  and  economic  antagonism  of 
many  years  duration  broke  forth  as  the  struggle  narrowed  and 
intensified,  and  the  time  approached  when  it  must  come  to  a 
decisive  issue. 

3.  A  large  part  of  the  harshness  shown  to  the  inhabitants  of 
the  occupied  area  was  due  to  the  provocations  which  they  gave 
to  the  occupant.  The  tolerance  of  guerilla  bands,  the  ambush 
of  sentries,  the  contumely  openly  shown  to  troops  and  officers 
the  conduct  of  "war-traitors"  and  "war  rebels",  the  treatment 
of  prisoners — all  these  causes  called  dowm  upon  guilty  and  inno- 
cent alike  the  penalty  which  only  the  fontier  would  suffer. 

4.  Americans  North  and  South  are  not  so  much  accustomed  to 
associate  authority  with  the  state  as  with  themselves.  A  state 
is  only  an  instrumentality  for  political  ends.  Consequently 
when  the  will  of  a  hostile  state  is  imposed  upon  them  it  is  not 
easy  to  bow  to  the  consequences  and  yield  obedience,  as,  in  the 
case  of  superior  force,  they  manifestly  should.  A  citizen  in  an 
occupied  area  enjoys  peace  and  security  only  upon  terms  of  non- 
resistance.  To  resist  is  worse  than  to  join  his  comrades  in 
arms,  and  the  usual  penalty  is  not  imprisonment  upon  capture, 
as  with  the  latter,  but  death.  It  would  be  hard  to  point  in  any 
war  to  as  many  instances  of  defiance  on  the  part  of  subject  non-com- 
batants, or  of  tolerance  upon  the  part  of  the  invader  where  harsh 
measures  would  have  been  justifiable. 

to  whom  vengeance  belongeth,  without  whose  favor  and  support  our  efforts 
must  all  prove  in  vain.  The  commanding  general  therefore  earnestly  exorts 
the  troops  to  abstain,  with  most  scrupulous  care,  from  unnecessary  or 
wanton  injury  to  private  property;  and  he  enjoins  upon  all  officers  to  arrest 
and  bring  to  summary  punishment  all  who  shall  in  any  way  offend  against 
the  orders  on  this  subject.  R.  E.  LEE,  General." 

(Quoted  from  the  Official  Report  of  the  History  Committee  of  the  Grand 
Camp,  C.  V.  Department  of  Virginia,  October  25th,  1901). 


From  Vattel  to  the  P.^esext  57 

5.  It  is  extremely  difficult  to  make  an  army  of  citizen-soldiers 
such  as  those  in  the  armies  of  the  North  and  South,  realize  fully 
the  vast  difiference  between  a  man  as  a  citizen  and  the  same  man 
when  he  becomes  a  soldier.  His  private  nature  ceases,  and  he 
becomes  an  instrument  of  the  state  to  be  hurled  against  similar 
instruments  of  the  opposing  state,  not  against  the  private  citi- 
zens thereof.  In  invading  the  enemy's  territory  it  is  very  easy 
to  forget  these  abstractions  when  he  sees  what  he  wants  and  has 
the  power  to  get  it  without  being  found  out.  It  takes  a  great 
deal  of  discipline  to  get  him  accustomed  to  the  self-restraint  which 
should  come  as  a  part  of  professional  training.  The  initiative  of 
the  American  soldier  showed  its  regrettable  side  on  many  a  for- 
aging expedition  when  the  rights  of  private  property  as  now  ac- 
corded by  international  law  were  totally  ignored. 

6.  All  such  rights  of  international  law,  to  borrow  an  expression 
from  positive  law,  were  in  an  uncodified  state.  There  was  no 
knowing,  at  least  by  the  officer  in  the  field,  to  say  nothing  of  the 
private  soldier,  where  the  disjecta  membra  of  this  law  were  to  be 
found,  and  when  found  and  fitted  together  into  codified  form,  it 
needed  the  sanction  of  national  authority  to  make  it  valid. 

7.  Even  when  promulgated  upon  national  authority,  coming 
as  a  new  law  it  was  difficult,  if  not  impossible,  to  enforce  it  strictly. 

8.  As  to  the  Confederate  troops,  after  having  seen  their  own 
country  endure  the  ravages  of  war,  it  was  but  human  that  as 
soon  as  they  invaded  the  North,  retaliation  should  be  uppermost 
in  their  minds  and  the  "general  orders"  of  their  commander 
which  followed  those  of  President  Lincoln  by  a  few  months,  were 
not  sufficient  to  prevent  it. 

To  meet  the  need  for  such  instrjiction.  President  Lincoln  as- 
signed to  Dr.  Francis  Lieber^  the  difficult  and  responsible  task 
of  preparing  a  manual  for  the  Federal  armies,  covering  chiefly 
the  subject  of  military  occupation,  and  also  such  other  usages  of 
war  as  were  necessary.  The  manuaP  was  duly  prepared,  passed 
upon  by  a  board  of  army  officers,  authorized  by  the  President, 


*Dr.  Francis  Lieber,  bom  in  Berlin,  March  18,  1800,  fought  in  the 
Napoleonic  wars,  came  to  America  in  1827,  lived  successively  m  Boston, 
New  York,  and  Philadelphia,  Professor  of  Political  Economy  in  South  Caro- 
lina University,  1835-56,  Professor  of  Political  Science,  Columbia  College, 
New  York  City,  until  his  death  in  1872. 

'For  the  full  text  of  this  manual  see  Rebellion  Records,  Series  III,  Vol. 
Ill,  p.  148. 


68  Belligerent  Occupation 

and  published  by  the  War  Department,  April  24th,  1863. ^  This 
date  therefore,  ushers  in  a  new  period  of  development,  the  period 
of  codification;  for  following  its  advent  many  others  have 
appeared  in  the  various  civilized  states,  and  these  in  turn,  have 
been  partially  harmonized  into  a  world's  manual  by  the  various 
congresses,  especially  the  Hague  Conference.'^ 

The  difficulty  of  the  undertaking  may  readily  be  conceived. 
In  a  letter  to  General  Halleck  concerning  this  work  Lieber  wrote : 
"I  have  earnestly  endeavored  to  treat  these  grave  topics  conscien- 
tiously and  comprehensively;  and  you,  well  read  in  the  literature 
on  this  branch  of  international  law,  know  that  nothing  of  the 
kind  exists  in  any  language.  I  had  no  guide,  no  ground-work, 
no  text-book.  I  can  assure  you,  as  a  friend,  that  no  counsellor 
of  Justinian  sat  down  to  his  task  of  the  Digest  with  a  deeper  feel- 
ing of  the  gra\dty  of  his  labor  than  filled  my  breast  in  the  laying 
down  for  the  first  time  such  a  code,  where  nearly  everything 
was  floating.  Usage,  history,  reason  and  conscientiousness,  a 
sincere  love  of  truth,  justice,  and  civilization,  have  been  my  guides 
but  of  course  the  whole  must  be  still  imperfect."  It  was,  in  fact, 
an  attempt  similar  to  that  of  Henry  V.  though  carried  out  with 
much  greater  detail,  formulated  by  a  civilian  who  had  already 
won  a  reputation  as  a  writer  upon  such  topics,  ratified  by  soldiers 
put  to  the  test  of  practical  experience  in  current  usage,  and 
imitated  in  a  measure  by  all  civilized  nations. 

It  is  evident  from  the  above  that  the  War  Ordinances  of  Henry 
V.  were  unknown  to  Dr.  Lieber.  In  the  four  hundred  and  forty- 
four  years  intervening,  usage  had  advanced  to  such  a  degree  that 
we  might  expect  that  the  earlier  one  would  be  of  little  assistance 
in  framing  the  later  one.  Such,  indeed,  would  be  the  case,  save 
in  the  personal  element,  the  mildness  and  humanitarian  senti- 
ment running  through  it.  Abundant  justification  for  restricting 
the  rigor  of  usage  in  any  particular  may  well  be  found  in  the  fact 
that  the  same  purpose  had  successfully  taken  shape  so  many  years 
ago.  On  the  other  hand,  the  great  political  changes  intervening 
made  it  possible  for  the  American  manual  to  provide  for  such  a  politi- 

^Maine  says  (International  Law  p.  129)  that  this  manual  was  prepared 
"Just  at  the  close  of  the  American  War  of  Secession" — not  the  only  mistake 
he  has  made  concerning  it. 

''See  appendix  B  for  that  of  the  Hague  Conference.  That  of  Dr.  Lieber 
was  reissued  by  the  United  States  without  modification  for  the  government 
of  its  armies  during  the  war  with  Spain  in  1898. 


From  Vattel  to  the  Present  59 

cal  stage  as  the  military  occupation  of  today,  whereby  an  extempor- 
ized state  is  secured  to  the  occupied  area,  and  thus  the  chasm  is 
bridged  over  between  the  preceding  and  succeeding  stages  of  peace, 
and  a  quasi  legality  given  to  all  legal  acts  that  occurred  during  the 
interregnum. 

A  knowledge  of  this  manual,  moreover,  would  have  made  it 
easier  to  dogmatize  upon  disputed  points — for  dogmatize  he  must 
who  culls  from  the  usage  of  the  times  and  the  opinions  of  accepted 
authorities,  gives  it  the  stamp  of  his  personality  and  formulates 
it  in  the  shape  of  authoritative  rules  of  conduct.  The  wonder 
grows  that  a  scholar,  such  as  Dr.  Lieber  was,  could  have  the  hard- 
ihood to  do  so;  and  that  he  did,  is  all  the  more  eloquent  in  its 
testimony  to  the  great  need  which  called  it  forth. 

However,  we  are  not  to  suppose  that  Dr.  Lieber  relied  alone 
upon  "usage,  history,  reason,  conscientiousness,  a  sincere  love  of 
truth,  justice  and  civilization."  The  task  was  not  simply  that  of  a 
humanitarian,  nor  primarily  so,  but  of  one  having  the  necessary 
erudition  and  technical  training.  Moreover,  the  points  upon  which 
it  was  necessary  to  dogmatize  were  almost  exclusively  those  re- 
lating to  the  treatment  of  private  property.  The  treatment  of 
public  property,  movable  and  immovable,  had  been  settled  long 
ago.  The  treatment  of  persons,  public  and  private,  had  likewise 
become  a  matter  of  established  usage.  But  the  status  of  occupied 
territory  had  not  yet  been  clearly  set  forth,  and  the  rights  and 
usages  relating  to  private  property — these  were  chief  points  still 
presenting  ambiguity. 

In  regard  to  private  property  in  occupied  territory  it  will  be 
of  interest  to  notice  the  opinions  of  various  writers  just  prior  to 
the  appearance  of  the  Manual  in  question. 

"All  movable  property  which  belongs  to  Enemy-Subjects,"  says 
Twiss^  writing  in  the  same  year  that  the  manual  appeared,  "is 
booty  of  war,  and  passes  with  the  territory  into  the  hands  of 
the  belligerent."  Nevertheless  he  regards  this  as  merely  a  matter 
of  "strict  right",  which  is  only  enforced  "where  the  Right  of  Re- 
sistance has  been  maintained  to  the  uttermost."  Woolsey^  writ- 
ing but  three  years  earlier,  lays  it  down  as  a  rule  of  war,  that  the 
"movable  as  well  as  immovable  property  of  private  persons  in  an 
invaded  country  is  to  remain  uninjured."     Contributions  and  re- 

'Sir  Travers  Twiss,  "The  Law  of  Nations,"  p.  122. 

'Theodore  Dwight  Woolsey,  Introduction  to  International  Law,  p.  219. 


60  Belligerent  Occupation 

quisitions,  however,  "are  still  permissible."  Wheaton,^  in  1836, 
admits  the  right  of  the  belligerent  "on  general  principles  .... 
to  seize  on  all  the  enemy's  property  of  whatsoever  kind  and  where- 
soever found."  But  by  the  modem  usage  of  nations  private 
property  on  land  "is  exempt  from  confiscation." 

Perhaps  the  most  important  writer  to  quote  in  this  connection 
is  General  H.  W.  Halleck.^  This  happens  because  of  his  well 
known  ability  and  competence  as  an  authority  on  international 
law  as  relating  to  war,  because  of  his  position  and  influence  in 
the  Federal  Army  at  the  opening  of  the  Civil  War,  and  because 
the  author  of  the  Manual  was  especially  considerate  of  his  coun- 
sel. "Private  property  on  land  is  now",  said  Halleck  (1861) 
"as  a  general  nile  of  jwar,  exempt  from  seizure  or  confiscation; 
and  this  general  rule  extends  even  to  cases  of  absolute  and  un- 
qualified conquest."  "Private  rights  and  private  property,  both 
movable  and  immovable,  are  in  general  unaffected  by  the  opera- 
tions of  a  war."  "Some  modem  textwriters — Hautefeuille,  for 
example — contend  for  the  ancient  rule  that  private  property  on 
land  is  subject  to  seizure  and  confiscation.  They  are  undoubtedly 
correct  with  respect  to  the  general  abstract  right  as  deduced  from 
the  laws  of  nature  and  practice;  but  while  the  general  right  con- 
tinues, modem  usage  and  the  opinions  of  modem  text -writers  of 
the  highest  authority,  have  limited  this  right  by  establishing  the 
rule  of  general  exemption." 

Most  of  the  writers  above  quoted  agree  upon  these  points :  first, 
that  the  abstract  right  still  remains  to  the  conqueror  of  confiscat- 
ing private  property,  second,  that  as  a  matter  of  fact,  he  does  not 
exercise  this  right — that  usage  is  to  the  contrary;  third,  that  this 
usage  is  subject  to  such  modifications  as  may  be  imposed  by  mil- 
itary necessity;  and  fourth,  that  thjs  military  necessity  must  not 
be  exercised  except  by  command,  the  object  being  to  maintain 
the  troops  by  means  of  contributions  and  requisitions,  or  to  weaken 
the  enemy,  in  extreme  cases,  by  the  devastation  of  his  source  of 
supply.  This  is  likewise  the  usage  at  the  end  of  the  nineteenth 
century  with  the  possible  exemption  of  the  first;  for  the  "natural 
rights"  are  very  little  in  evidence  in  political  philosophy,  and  an 
"abstract  right"  which  is  admittedly  contrary  to  usage  enjoys  but 
a  shadowy  existence. 

'Henry  Wheaton,  International  Law  (1861)  p.  456-7. 
'Henry  W.  Halleck,  International  Law  (1861)  p.  456-7. 


From  Vattel  to  the  Present  61 

The  influence  of  this  manual  upon  the  codification  of  the  rules 
of  war  has  been  most  remarkable.  Practically  all  of  the  Euro- 
pean states  have  followed  the  example,  and  issued  manuals  of  sim- 
ilar purpose  and  design.  How  far  they  are  indebted  to  that  of 
the  United  States  it  would  be  impossible  to  say  without  a  close 
analysis  and  comparison  of  them  all,  and  this  is  out  of  the  ques- 
tion as  long  as  they  are  not  all  obtainable.  The  German  manual, 
for  instance,  exists  only  in  the  form  of  confidential  instructions  to 
the  army  officers.  It  has  been  said  that^  "perhaps  the  most  sing- 
ular feature  of  these  (later)  manuals  is  the  number  of  rules  adopted 
in  them  which  have  been  literally  borrowed  from  the  De  Jure  Belli 
et  Pacis."  This  seems  quite  improbable  from  what  we  know  of 
the  crudity  of  the  subject  at  the  time  that  Grotius  wrote.  It  is 
much  more  probable,  indeed,  that  Lieber's  manual  was  still  more 
influential  upon  the  later  ones,  both  as  a  national  source  and  as 
an  authoritative  utterance  in  regard  to  usage.  As  an  incentive  to 
action  there  is  no  occasion  for  argument-.^ 

Since  the  appearance  of  all  these  manuals,  however,  an  event 
has  occurred  which  promised  much  and  fulfilled  little  in  the  mat- 
ter of  affording  a  concrete  illustration  of  modem  usage,  namely 
the  Pekin  Expedition  of  1900.  Here  we  have  a  joint  invasion  of 
hostile  territory  by  several  great  military  powers,  or  rather  a 
series  of  parallel  invasions  executed  conjointly,  and  the  occasion 
would  seem  to  be  instructive.  But  unfortunately  for  purposes  of 
study  the  country  invaded  was  one  of  the  few  which  does  not  as  yet 
come  within  the  pale  of  international  law  upon  terms  of  equality. 
It  is  unaware  of  the  gravity  of  the  violation  of  the  right  of  lega- 
tion, and  could  only  be  treated  as  an  inferior  nation.  From  time 
immemorial  a  contest  between  states  of  an  vmequal  degree  of  civil- 
ization, has  always  been  on  the  plane  of  the  lower  civilization,  and 
necessarily  so.  It  mattered  nothing  in  the  present  instance  that 
the  people  of  the  invaded  territory  are  naturally  of  a  peace-loving 
disposition.  There  was  but  one  category  in  which  to  put  them 
under  the  circumstances  and  that  was  with  barbarians.  More- 
over the  expedition  was  punitive  in  purpose,  calling  for  retalia- 
tion upon  the  country  and  people.     Taking  these  facts  into  con- 


^Sir  Henry  Maine,  International  Law,  p.  24. 

^Those  interested  in  studying  the  subsequent  efforts  to  synthesize  the 
various  manuals,  except  the  work  of  the  Hague  Conference,  will  find  the  sub- 
ject treated  in  Holland's  "Studies  in  International  Law." 


62  Belligerent  Occupation 

sideration  it  is  easy  to  see  that  the  only  possible  contribution  it 
affords  to  our  subject  must  be  by  way  of  comparison  of  the  usages 
of  the  different  armies.  Here  again  the  data  are  not  all  available, 
and  the  testimony  of  eyewitnesses  is  too  conflicting  to, be  reliable. 
There  is  no  doubt  that  innocent  Chinese  suffered  many  indignities, 
both  in  person  and  property,  and  there  is  no  doubt  too  that  every 
nation  involved  would  be  glad  to  believe  its  own  troops  the  least 
culpable.  The  report  of  the  Lieutenant  General  commanding  the 
American  army  of  invasion  shows  several  cases  of  violence  which 
were  properly  tried  and  the  offenders  severely  punished,  and  ser- 
ious attempts  at  restraint  were  very  generally  adopted.  The 
whole  matter,  however,  awaits  the  historian. 

It  is  fitting  to  close  this  study  with  an  examination  of  the  legal 
status  of  belligerent  occupation  in  connection  with  the  right  of 
postliminium. 

Occupation,  as  we  have  seen,  is  but  a  temporary  condition  which 
ceases  with  the  close  of  the  war.  It  can  have  one  or  the  other  of 
two  possible  outcomes — neglecting  for  the  present  the  discussion 
of  the  results  of  aid  by  allies — namely  restoration  or  conquest; 
either  result  is  expressed  or  implied  in  the  treaty  of  peace  at  the 
close  of  hostilities.  If  it  is  the  latter,  the  conquering  state  makes 
such  poHticp,l  adjustment  as  may  be  necessary  to  fit  the  acquired 
territory  to  its  new  allegiance.  Owners  of  immovable  property 
on  their  part  are  not  dispossessed  but  may  alienate  their  pos- 
sessions and  return  to  their  former  allegiance.  In  case  of  conquest 
the  right  of  postliminivim  perishes  ''.\ith  the  treaty  of  peace  so  far 
as  it  affects  property.^  Undoubtedly  the  same  right  as  affecting 
the  jural  capacity  of  persons  returning  to  the  land  of  their  former 
allegiance,  could  not  be  denied;  and  in  such  a  case  we  would  have 
practically  an  exact  analogy  to  the  ancient  Roman  origin  of  the 
right ;  namely,  by  the  return  of  a  Roman  prisoner  from  captivity. 
All  this  is  well  illustrated  in  the  treaty  of  peace  concluding  the 
Franco-Prussian  War  wherein  the  liberties  of  the  inhabitants  of 
Alsace-Lorraine  in  the  choice  of  their  allegiance  were  properly 
safeguarded. 

'Upon  this  point  the  writer  respectfully  begs  leave  to  differ  with  the 
opinion  expressed  in  the  Manual  of  the  United  States  Naval  War  College, 
p.  115.  True,  "the  right  of  postliminium,  so  far  as  international  law  is  con- 
cerned ....  refers  now  to  the  restoration  of  things  and  less  to  movable  things 
than  to  real  property  and  territory."  But  it  is  also  true  that  there  are  per- 
sonal and  political  rights  which  have  nothing  to  do  with  property,  and  these 
must  be  resumed,  in  the  case  supposed,  by  postliminium. 


From  Vattel  to  the  Present  63 

The  other  outcome  of  occupation  previously  referred  to,  namely 
restoration,  is  clearly  contingent  upon  the  right  of  postliminium. 
Without  it,  the  occupied  territory  must  either  be  in  a  state  of 
unorganized  and  desultory  resistance,  much  to  the  detriment  of 
both  contestants,  or  of  submission  and  allegiance  to  the  conqueror, 
whereby  it  would  innocently  incur  the  displeasure  of  its  own  gov- 
ernment, to  say  nothing  of  the  duplicity  it  must  resort  to  in  order 
to  win  a  dishonorable  peace.  Its  importance,  therefore,  not  as 
affecting  private  movable  property,  but  of  territory,  immovable 
property,  and  personal  rights  other  than  those  referring  to  property, 
can  not  be  overestimated.  Whatever  one  might  say  of  the  treat- 
ment of  private  movable  property,  no  one  now  would  be  willing 
to  say  with  Halleck:  "We  think,  therefore,  that  by  the  just  rules 
of  war,  the  conqueror  has  the  same  right  to  use  or  alienate  the  pub- 
lic domain  of"  the  conquered  or  displaced  government  as  he  has  to 
use  or  alienate  its  movable  property." 

'The  importance  of  postliminium  has  been  much  underrated  by  recent 
textbook  writers  because  of  its  decadence  as  appHed  to  private  movable 
property — ships  being  the  only  article  of  this  category  now  covered  by  it. 
But  it  must  be  apparent  from  the  foregoing  that  while  in  an  unimportant 
particular  it  has  decayed,  in  these  fundamental  particulars  it  has  gained  a 
new  and  enlarged  significance. 


LIST    OF    WORKS   CONSULTED 


Abdy  and  Walker — Gaius  and  Ulpian. 

Acolias,  Emile — Le  Droit  de  la  Guerre. 

Bluntschli,  J.  K.  —The  Theory  of  the  State. 

Bryce,  James — Studies  in  History  and  Jurisprudence. 

Bynkershock,  van,  Cornelius  Jan — Quaestioncs  Juris  Publici. 

Christian,  George  L. — Official  Report  of  the  History  Committee,    Confed- 
erate Veterans,  Department  of  Virginia. 

Conde — The  Arabs  in  Spain. 

Calvo — International  Law. 

Crompton,  George — L'Authorite  et  Jurisdiction  des  Courts  de  la  Majestic 
de  la  Roygne. 

Davis,  Col.  Geo.  B. — Elements  of  International  Law. 

Great  Britain — Manual  of  Military  Law. 

Great  Britain — ^Year  Books,  Edward  III,  Richard  II,  etc. 

Grotius,  Hugo — De  Jure  Belli  et  Pacis,  3  vols. 

Hall,  W.  E. — International  Law. 

Hallam,  Henry — Europe  in  the  Middle  Ages. 

Halleck,  Gen.  H.  W.,  A.  M. — International  Law. 

Harley,  L.  R.,  Ph.  D. — Francis  Lieber,  His  Life  and  Political  Philosophy. 

Holland,  T.  E.,  D.  C.  L. — Studies  of  International  Law. 

Holland  T.  E.,  and  Shadwell,  C.  L.— Select  Titles  from  the  Digest  of  Justin- 
ian. 

Holls,  F.  W.,  D.  C.  L.— The  Peace  Conference  at  the  Hague. 

Hosack,  John — The  Rise  and  Growth  of  the  Law  of  Nations. 

Hunter,  W.  A.,  M.  A.,  LL.  D. — Roman  Law. 

Justinian — Pandectae  Justinaneae,  5  vols. 

Lawrence,  T.  J.,  M.  A.,  LL*  D. — Principles  of  International  Law. 

Lieber,  G.  N. — Remarks  on  Army  Regulations  of  the  United  States. 

Maine,  Sir  Henry — Ancient  Law. 

Maine,  Sir  Henry — International  Law. 

Mozo,  M.  J. — Derecho  de  Gentes  y  Maritimo  Internacional. 

Negrin,  I. — Derecho  Internacional  Maritimo. 

Nys,  Ernest — Les  Origines  de  Droit  International. 

Polybius — History. 

Poste,  Edward,  M.  A. — Gaii  Institutionum  Juris  Civilis. 

Pufendorf,  von,  Samuel — De  Jure  Naturae  et  Gentium. 

Sandars,  T.  C,  M.  A. — The  Institutes  of  Justinian. 

Snow,  Freeman,  Ph.  D.,  LL.  B. — Cases  on  International  Law. 

Sohm,  Rudolph — Institutes  of  Roman  Law  (2d  ed.) . 

Taylor,  Hannis,  LL.  D. — International  Public  Law. 

Twiss,  Sir  Travers,  D.  C.  L.— The  Black  Book  of  the  Admiralty  (4  vols.). 

Twiss,  Sir  Travers,  D.  C.  L. — The  Law  of  Nations. 

United  States — Rebellion  Records,  Series  III,  Vol.  III. 

United  States — Manual  of  Naval  War  College. 

Vattel,  de,  Emmerich — The  Law  of  Nations. 

Walker,  T.  A. — A  History  of  the  Law  of  Nations. 

Ward,  Robert — Enquiry  into  the  Foundation  and  History  of  the  Laws  of 
Nations  in  Europe  (2  vols.) . 

Wheaton,  Henry,  LL.  D. — International  Law  (Boyds). 

Wheaton,  Henry,  LL.  D. — Histoire  de  Progres  de  Droit  de  Gens  in  Europe. 

Woolsey,  Theodore  Dwight — Introduction  to  the  Study  of  International  Law. 

Xenophon — Cyropaedia. 

Zouch,  Richard — Juris  et  Judicii  Fecialis  sive  Juris  inter  Gentes. 


SboZ 


Shi 


Vol 
Vol 


Vol 


THE  LIBRARY 
UNIVERSITY  OF  CALIFORNIA 

Santa  Barbara 


9HI 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW. 


tn    :^oaotogy.  Economics, 


Series  9482 

■i  .w^--»m^w  vtf^nmvi  uj   ine   oiuates  ^ 

Politics,  and  History  have  been  published,  and  maybe  d>7aZdZ 
addressing: 

THE  LIBRARIAN, 

IOWA  CITY,  IOWA 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


A    001  075  119     6 


